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The casuist; a collection of cases in 
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a The casuist; |b a collection of cases in moral and pastoral theology, 
a New York, |b Joseph F. Wagner, |c 1906-1917. 
a 5 v. |c 23 cm. 

a v. 5 prepared and edited by Reverend J.A. McHugh. 
a Casuistry. 

a McHugh, John A. (John Ambrose), |d b. 1880 s 

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INTENTIONAL SECOND 



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II 



THE CASUIST 

A Collection of Cases in 

Moral and Pastoral 

Theology 



I 




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New York 

Joseph F. Wagner 

1906 



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REMIGIUS LAFORT, S.T.L. 

Censor Librorum 



imprimatur 



JOHN M. FARLEY, D.D. 

Archbishop of Nenv York 



* 



New York, October 2, 1906 



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PREFACE. 

THE present volume, made up chiefly of Cases that appeared 
in The Homiletic Monthly, is issued in answer to the 
request of some of the subscribers to this magazine who have 
expressed their desire to possess these Cases in such form as to be 
easily accessible when reference to them is necessitated by the exi- 
gencies of daily missionary life. 

Many, too, have been unable to secure copies of The Homiletic 
Monthly containing these Cases, as the earlier volumes were soon 
out of print. Hence it is confidently believed that this volume will 
be welcomed by the friends and readers of The Homiletic 
Monthly, and by priests on the mission in general. 

The Cases are plain and practical, such as come into the sphere of 
activity of the priest whose duty brings him into intimate relations 
with souls, either as confessor, or adviser, or friend. 

In fact, many of the Cases presented are original and were sent 
to the editor for solution by busy or perplexed missionaries. Others, 
taken from various periodicals, have been chosen for their practical 
value and to such Cases the author's name is appended. 

The editor desires to express his gratitude to those who have 
helped in editing this collection, especially to one whose name is 
withheld owing to the modesty and humility of, its owner. 



r 



Copyright, 1906, by Joseph F. Wagner, New York 



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CONTENTS. 



ii. 
in. 

IV. 

v. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 

XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX. 



XXX. 
XXXI. 

XXXII. 
XXXIII. 
XXXIV. 

XXXV. 

XXXVI. 



PAGE 

Necessity of General Confession for a Convert Rebaptized 

Sub Conditione 7 

Churching of Women after Illegitimate Childbirth .. '. ... * n 

Low Mass on Holy Thursday jt 

Legalization of an Illicit Union 22 

Saying Mass in Fermented Bread 26 

Defrauding an Insurance Company: A Case of Restitution 31 

Absolution from Censures Reserved by the Bishop 26 

Clerical Censure aa 

Communion of a Newly Baptized Convert . . " . . . '. . . . . .... 49 

Mixed Marriage before a Protestant Minister 51 

Hysterical Scrupulousness of a Nun 57 

The Adjusting of Mass Stipends 63 

The Conferring of a Dispensation and the Seal of Confes- 
sion 6> 

Commutation of the Simple Vows of Celibacy . . ........ . 67 

Defraudation by a Bank Employee : A Case of Restitution 71 

A Casus of Confession 73 

Requiem Masses with the Blessed Sacrament Exposed. . '. '. 75 
Means by Which to Induce Those Seriously Sick to Receive 

the Sacraments 77 

The Marriage Tie .!..!.!!..!!!!.. 79 

Forbidden Books 83 

A Promise a Binding Contract ? !...!.....!.!. 86 

For What Persons May the Holy Sacrifice of Mass * be 

Offered ? gg 

The Words of Consecration 02 

Confession by Telephone ? 94 

May Mixed Marriage Ever be Advised? .1...... 100 

Inquiring in Confession for the Name of an Accomplice . 103 

A Case of Restitution % I0 g 

The Pauline Privilege m 

May a Person be Dispensed from Hearing Mass on Sun- 
days if Going to Mass Becomes a Proximate Occasion 
of Sin? jjg 

Concerning the Perusal of Private Revelations .......... [ 123 

Dispensation from Impedimentum Impediens arising from 

Betrothal I2 g 

Doubtful Consecration and Its Consequences ............ 131 

Dispositions Required for Saying Mass 135 

Using the Form for Infant Baptism in the Baptism of 

Adults j^g 

May a Catholic Girl Act as Bridesmaid at a Non-Catholic 
Marriage ? I4 - 

Where should a New-born Child be Baptized? ........... 151 

V 



J 






XXXVII. 

XXXVIII. 

XXXIX. 

XL. 

XLI. 

XLII. 

XLIII. 

XLIV. 

XLV. 

XLVI. 



XLVII. 

XLVIII. 

XLIX. 

L. 

LI. 

LII. 

LIII. 

LIV. 

LV. 

LVI. 

LVII. 

LVIII. 

LIX. 

LX. 

LXI. 

LXII. 

LXIII. 

LXIV. 

LXV. 

LXVI. 

LXVII. 

LXVIII. 

LKIX. 

LXX. 

LXXI. 

LXXII. 

LXXIIL 



CONTENTS. 

PAGE 

A Recent Papal Dispensation "Super Matrimonio Roto et 

Non Consummate" ; , . 155 

Are Baptized Non-Catholics Bound by the Laws of the 

Church ? 160 

A Mixed Marriage in a Town Where the "Tametsi" is in 

Force 165 

A Case of Restitution 171 

Interpellation in the Casus Apostoli 177 

De Dispensatione ab Impedimento Mixtae Religionis 180 

Sudden Sick Calls 184 

Confession of a Dying Person 189 

Marks of Friendship toward an Enemy 193 

The Obligation of Restitution, Arising from Concealing 
the Real Value of an Object and Thereby Depreciating 

Its Price '. 198 

Restitution to a Railroad Company 202 

Fraternal Correction 208 

A Pastor's Watchfulness over His People 213 

The Medical Secret 219 

Responsibility for Mass Stipends 228 

A Son's Duty toward His Father 233 

Appropriating Another's Ideas 237 

Incurring Ecclesiastical Censure 240 

Godparents in Baptism 243 

Right of a Bishop to Suspend a Priest without Trial 248 

The Use of Morphine * 255 

The Vow to Enter an Order 257 

Restitution on Account of Incendiarism 261 

In Rebuilding a Parish Church, May the Name be Changed ? 265 
Marriage Dispensation in a Case of Temporary Vows . . 268 

Interruptio Missae for an Urgent Sick Call 270 

A Case of Restitution 272 

Lay Confraternities Forbidden in Convent Chapels 274 

Casus Matrimonialis Perplexus 277 

Two Consecration Cases 279 

Marriage by Priest Without Banns and Confession 290 

The Near Occasion With Relation to Company-keeping . 292 
Confessarius Extraneus : A Case from the Law of Regulars 303 

An Invalid Absolution 311 

Impeditio Prolis 316 

A Sick Person Converted Through Hypnotic Suggestion . 320 
An Explanation of the Words : "Nemo in Utero Matris 
Clausus Baptizari Debet*' 331 



**\ 



1 



THE CASUIST. 



New Casus Conscientiae of General Import, Discussed and Solved. 



L NECESSITY OF GENERAL CONFESSION FOR 

A CONVERT REBAPTIZED SUB 

CONDITIONS. 

Mr. N., a convert to the Catholic faith, was baptized, as a child, 
in the Lutheran Church. He is now 50 years of age. There exists 
reasonable doubt as to the validity of his baptism received in the 
Lutheran Church, and for this reason he is rebaptized, conditionally, 
on his reception into the Catholic Church. But now there arises this 
question : Must Mr. N. make a full confession of all the mortal sins 
he may have committed, since his baptism as a Lutheran? Or may 
he be excused from making a full confession, because since his first 
baptism is doubtful, the sins committed after it are materia dubia 
for confession, and therefore need not necessarily be confessed. 
Would it not be sufficient for Mr. N. to confess a few sins, after 
his baptism as a Catholic, and thus receive a valid absolution, 
indirect for all his sins committed since his first baptism? It will 
be a great hardship for Mr. N. to repeat the sins of half a century, 
and it seems unreasonable to subject him to this hardship, since he 
has only doubtfully contracted, in his first baptism, the obligation 
of confessing his sins. Moreover, Ballerini and other authors assert 

7 



8 



THE CASUIST. 



! 



that it is not of strict necessity that converts should make a complete 
confession of their lives. Therefore we ask, may Mr. N. be ex- 
cused, under the circumstances, from making a full confession of 
his whole life? 

Answer. — Mr. N. will have to make a full confession of all his 
sins from the day of his baptism in the Lutheran Church. This may 
appear a hardship, nevertheless it is so ordained by the second and 
third plenary councils of Baltimore, and by repeated declarations 
of the Holy See. 

Lehmkuhl treats of this matter at some length, and maintains 
that after the recent decisions of the Holy See, concerning this mat- 
ter, there can remain no doubt about it. Many theologians were 
inclined to exempt converts from this obligation, when they were 
rebaptized sub conditione, on entering the Catholic Church, because 
since the validity of their Catholic baptism was doubtful, it remained 
also doubtful whether the sins committed before it were really re- 
mitted by sacramental absolution, or by the Catholic baptism. Hence 
these theologians thought that to such converts, if they confessed 
matter sufficient for absolution, although they made no general con- 
fession of their lives, absolution might be given conditionally, and 
that thus all their sins would be remitted indirectly, provided their 
first baptism in Protestantism was valid. And thus they tried to 
save the convert from the hardship of a life-confession on his en- 
tering the true Church. 

But against all this reasoning of the theologians (cf. Ball, ad Gury, 
torn. II, 231, n. 4), the Holy See has expressly declared that con- 
verts who receive conditional baptism must confess all the mortal 
sins of their past lives, quoad speciem et numerum, and be absolved 
from them conditionally. The Holy See gave this decision in 1715, 









GENERAL CONFESSION FOR REBAPTIZED CONVERT. 9 

in the well known case of Charles Wippermann. And again, in 
1868, when the bishops of England, through Cardinal Manning, 
asked the Holy See for a ruling on the question. The case of 
Charles Wippermann, of course, was a particular case laid before 
the Holy Office. But the intention of the Holy Office, in deciding 
it, was to pass a sentence and to give a decision, which might apply 
to all cases coming under this head, and which might be regarded in 
the future as the law on this matter ; for the decree must be regarded 
as an authentic interpretation of the divine law by the Holy See, and 
not merely as a local law or as a disciplinary measure of the Church. 
The Church will not, and can not, prescribe anything as necessary 
matter for confession which is not so by divine law. In accordance 
therefore with the divine law, sins committed after a doubtfully 
valid baptism must be submitted to the power of the keys in the 
tribunal of Penance. This we learn from the positive declaration 
of the Church. Reason, likewise, confirms it. For, though one 
who is doubtfully baptized has not a certainty, but only a probability 
of receiving sacramental absolution of his sins, it does not follow 
that the obligation to confess them is only probable, and may be dis- 
regarded; for the duty of confessing and performing the penance 
received is for all more certain than that probability of receiving 
the effects of the Sacrament. Whether the penitent receives the 
sacramental effects of the absolution depends on the validity of his 
first baptism, so that doubt may be always entertained about it. 

But the duty of confessing and doing the penance admits of no 
such doubt, since it is based upon grounds morally certain and suffi- 
ciently evident. If this were not so there would be an end of all 
human obligations. By baptism men come under the jurisdiction 
of the Church. This is the external rite by which men are admitted 



IO 



THE CASUIST. 



as members. But no one doubts that a man remains subject to the 
jurisdiction of a social body, into which he has been admitted by the 
acknowledged external rites, till that reception is proved to be in- 
valid. All, therefore, who have been baptized, and who were de- 
sirous of receiving baptism validly, though there exist doubt about 
the validity, are subject to the jurisdiction of the Church and to her i 
laws, and are bound to comply with the divine command of confess- 
ing their sins. In other words, the doubt about the baptism has 
this effect, that the baptism may be regarded as invalid in the sense 
that it ought to be repeated conditionally, lest the man risk his 
eternal salvation; but not in the sense that a doubtfully valid bap- 
tism impairs or wipes out all a man's obligations toward the laws 
and regulations of the Church, among which is the precept of con- 
fessing all one's mortal sins committed after baptism, (cf. Schieler, 
Theory and Practice of the Confessional, p. 190.) 



II. CHURCHING OF WOMEN AFTER ILLEGITIMATE 

CHILDBIRTH. 

Bertha, an unmarried young woman, gives birth to an illegitimate 
child. Some months after its birth she brings it to the parish 
church to have it baptized. After its Baptism she requests the par- 
ish priest to church her. But he, already sorely troubled by the 
scandal the girl has brought on the parish, indignantly refuses to 
church her. In fact, he tells her the Church refuses to bless a 
woman after an illegitimate birth, that the churching of women is 
intended solely for decent legitimate mothers, and that to church 
her would be to transgress the command of Our Lord, about throw- 
ing pearls before swine. Some days afterwards, however, he began 
to think that perhaps he had been too severe, that perhaps he ought 
to have churched the unfortunate woman, that scolding her now 
could do no good, since the evil was done, and a bitter price already 
paid, and the unhappy girl was not likely to repeat her experience. 

m 

He now asks whether he ought to have churched the woman, since 
she desired to be churched ; or was it lawful for him to have refused 
her? Had she a strict right to the blessing, or was it within his dis- 
cretion whether he would church her or not, or would it have been 
unlawful to church her ? 

Answer. The Roman Ritual has nothing to say regarding the 
churching of women after an illegitimate birth. There are three 
decrees of the Congregation of Rites concerning the churching of 
women after a legitimate birth, in Gardellini's collection. In 1631, 
the Congregation of Rites answered: "quo veto ad bene die tionem 
mulierum post partum, hoc esse munus parochiale, et ad ipsum paro- 
chutn spectare" Again, when it was urged, in the same year, that 

11 



12 



THE CASUIST. 



CHURCHING OF WOMEN. 



*3 



the churching of women was not de praecepto, but only ad bene esse, 
and therefore might be performed by any priest, the Congregation 
of Rites answered that the churching of women belonged to the 
rights of the parish priest, exclusively. The samQ answer was given 
again in 1703. 

Since the Roman Ritual says nothing about the churching ot 
women who have given birth to illegitimate offspring, and since 
nothing can be found in the decrees of the Roman Congregations 
concerning the same, we will consider the origin and nature of 
the ceremony of blessing women after childbirth. The rite has its 
origin in the prescription of the Old Law, concerning the purifica- 
tion of women after childbirth. 

In the book of Leviticus, ch. 12, we read: "Neither shall she (a 
woman after childbirth) enter into the sanctuary until the days of 
her purification be fulfilled. . . . And when the days of her 
purification are expired, for a son or for a daughter, she shall bring 
to the door of the tabernacle of the testimony, a lamb of a year old 
for a holocaust, and a young pigeon or a turtle, for sin, and shall 
deliver them to the priest; who shall offer them before the Lord, 
and shall pray for her." ^ 

"It is evident from the words of the law" says O'Kane (Rubrics, 
ch. x.) "that it could not apply to the Blessed Virgin in whom there 
were none of the effects of ordinary childbirth, since not only in con- 
ceiving, but in giving birth to the divine Infant, she still remained 
a pure and perfect virgin. Yet we know from St. Luke that she did 
not avail herself of the exemption, but humbly complied with the 
requirements of the law. A desire of imitating the humility of the 
Blessed Virgin, induced the custom among Christian mothers of 
abstaining from entering the church for some time after childbirth. 
They then asked the blessing of the priest at the church door, and 



made their first visit one of thanksgiving to God for their safe 

delivery." 

The Jewish rite was intended only for legitimate wives and 
mothers, united in lawful wedlock. From which we infer that it was 
the intention of the Church, from the beginning, to confer this 
rite only on lawfully married women, after legitimate childbirth. 
Moreover, if we consider where this blessing occurs in the Roman 
Ritual, namely, immediately after the Sacrament of Marriage, as 
if pertaining to the same matter, and not among the other blessings 
of the Ritual, we seem to gather that it was intended by the Church 
only for women who have given birth to legitimate children in law- 
ful wedlock. 

Wherefore Catalanus, in his Commentary on the Roman Ritual, 

de bened. mulier. n. 17, says : 

"Reliquum est, ut ad calcem hujus commentarii circa puerperas 
purificandas, et istud notemus, benedictionem post partum ex tantum 
mulieri concedi, quae ex matrimonio pepererit, non autem illi quae 
ex fomicatione, et potissimum ex adulterio, aut damnato alias coitu 
parturiit. Ita plane docent communiter doctores, et statutum etiam 
in synodis ac Ritualibus legi" 

Baruffaldi, commenting on the Roman Ritual, is of the same opin- 
ion (ad Rit. Rom. comm. de bened. mulier. tit. 43, n. 18). 

De Herdt also, in his work on the Liturgy, arrives at the same 
conclusion. He says : "Only those women who bring forth children 
in lawful wedlock, have a right to this blessing ; so much so that 
women who beget children in adultery or fornication should not 
be permitted to receive this special blessing, but rather should be 
made to do public penance." 

"Ad hanc benedictionem jus tantum habent mulieres quae ex 
legitimo matrimonio pepererunt; ita ut ad hanc admitti nequeant 






14 



THE CASUIST. 



Mae quae notorie ex adulterio aut fornicatione prolem pepererunt, Us 
potius imponenda esset publica poenitentia" (De Herdt, S. Liturg. 
juxta Rit. Rom. bened. mulier. n. II.) 

This question was proposed to the Congregation of the Council, on 
the 18th June, 1859. The Congregation returned the following 
answer : 

"Ad benedictionem post partum, jus tantummodo habere mu- 
lieres, quae ex legitimo matrimonio pepererunt" 

As is evident from the text, the sacred Congregation speaks only 
of the right — jus — of legitimately married women, to this blessing. 
The Congregation says nothing as to the permissibility of giving the 
blessing to unmarried women, after an illegitimate childbirth. It 
is quite clear that an unmarried woman has no strict right or just 
claim to be churched, after giving birth to an illegitimate child. But 
the question is not one of right; the question is one of the lawfulness 
of churching women after an illegitimate birth, not whether the 
priest committed a sin or acted unjustly in refusing to church Bertha, 
but whether he would have committed a sin or transgressed the law. 
of the Church, if he had churched her. 

Although the Roman Ritual may have taken occasion to speak of 
the churching of women from the Sacrament of Matrimony, still it 
remains true that the Ritual makes no distinction between legitimate 
and illegitimate childbirth, but simply describes the ceremony of 
blessing a woman after childbirth. Indeed it may even be urged 
that a woman has more need of this blessing after an illegitimate 
birth, than has a woman after a legitimate birth. For the nature and 
purpose of the ceremony is to purify the woman after confinement, 
that she may be clean again to enter the sanctuary of the Lord. And 
certainly a woman who has brought forth a child unlawfully, has 
more need of being purified before entering the church, than the 



CHURCHING OF WOMEN. 



IS 



woman who has borne a legitimate child. And if the blessing were 
to be omitted in the case of a notoriously illegitimate childbirth on ac- 
count of the scandal it would occasion, still exception should be 
made for the poor woman who has brought forth her child in secret, 
and who was led into sin by deception or human frailty. In some 
countries, as in Belgium, for instance, in the case of a notorious ille- 
gitimate birth, the mother may not be churched except by the arch- 
priest or dean, in order to enable the archpriest or the dean to 
discover, if possible, the identity of the father of the child, in order 
to institute legal proceedings against him. In some dioceses in 
Ireland, women who have given birth to illegitimate children are 
prohibited from being churched; in other dioceses they are re- 
stricted. In the diocese of Cashel and Emly there is this statute, dat- 
ing from 1782 : 
Nulla mulier quae extra matrimonium pepererit, ante mensem 

elapsum purificetur; si iterum et similiter pepererit, ante duos men- 
ses elapsos puriHcetur; ter extra matrimonium pariens, nunquam 
puriHcetur." (O'Kane, Rubrics, p. 214.) 

To conclude. Women who give birth to illegitimate children have 
no strict right to be churched, according to the decree of the sacred 
Congregation of the Council, June 18, 1859. 

Further than this there is no general law of the Church concern- 
ing the churching of women, except that it belongs to the rights of 
the parish priest. If, therefore, there exist no diocesan statute, pro- 
hibiting the churching of women after an illegitimate childbirth, the 
parish priest is at liberty to do whatever he judges best in any par- 
ticular case. 

In the case before us we are inclined to think that the pastor was 
too harsh with Bertha. The poor woman had evidently suffered a 
great deal already, and the blessing might have helped her to regain 



m 



1 






i6 



THE CASUIST. 



her self-respect. There is danger that she may go wrong altogether, 
now that she feels herself so dishonored and she has need of great 
kindness and forbearance to help her rehabilitate herself in the es- 
teem of the community. She would seem to be worthy of praise, 
rather than of contumely for desiring to receive the blessing post 
partum, and in the majority of such unfortunate cases kindliness 
will produce better results than severity. 



\ 






III. LOW MASS ON HOLY THURSDAY. 

We were asked, last year, shortly before Holy Week, by the pas- 
tor of a small country parish, whether it would be lawful for him 
to say a low Mass on Holy Thursday for the accommodation of his 
people, when it was practically impossible for him to carry out any 
of the other ceremonies of Holy Thursday or to say the Mass of 
the presanctified on Good Friday, or to perform any of the sacred 
rites of Easter Saturday. His people, he said, could not attend 
any other church on that day on account of the distance, nor would 
they understand why he did not say Mass on Holy Thursday, even 
though he could not hold services on Good Friday or Holy Satur- 
day. His people were very anxious to hear Mass on that day above 
all others, and to receive Holy Communion, as it was the august 
anniversary of the institution of the Blessed Sacrament, and he was 
very anxious to satisfy their desires, if it were at all lawful for him 
to do so. * 

Answer. Gasparri, tract, can. de Smo. Euch. n. 67, says: "The 
general principle that obtains in the Church to-day is, that Mass may 
be celebrated on any day in the year." "Haec disciplina viget hodie : 
nempe principium generale est Missam celebrari posse qualibet die." 
However, the Latin Rite excepts from this general rule, the three 
last days of Holy Week, viz., Holy Thursday, Good Friday and Holy 
Saturday. But even as regards these three days, there is a great 
difference between Holy Thursday and the other two days. Holy 
Thursday has its own proper Mass, and is not a "dies aliturgicus" 
Indeed, formerly, three Masses were celebrated on Holy Thursday ; 
one for reconciling penitents to the Church, the other for the con- 
secration of the oils, and a third one in memory of the institution 



i8 



THE CASUIST. 



s 



of the Holy Eucharist. It is a very ancient custom in the Church, 
that the clergy abstain from saying Mass on Holy Thursday, and 
assist at this third Mass. And thus the custom was gradually in- 
troduced, that on Holy Thursday a solemn Mass was celebrated, 
and all low Masses were forbidden. This is now the general rule 
for the whole Church ; private Masses, or low Masses, are prohibited 
on Holy Thursday. But this rule again is not so absolute that it 
suffers no exceptions. "Porro Missas privatas feria V. majoris heb- 
domadae prohiberi est regula generalis; quae tamen non est adeo 
absoluta ut nunquam hac die pro fidelium commoditate Missas 
privatas celebrare liceat." (Ibid. n. 75.) 

Among the exceptions, now, that writers on the sacred liturgy 
enumerate, when it is lawful to say a low Mass on Holy Thursday, 
we find the very case as stated in the beginning of this article. 

In the year 1821, the following "Dubium" was laid before the 
Congregation of Rites : 

May the custom be tolerated that obtains in some parishes, es- 
pecially in the country, of celebrating a low Mass on Holy Thurs- 
day, when the other sacred rites, prescribed to be performed on that 
day and on Good Friday, can not be carried out, owing to the lack 
of clergy; or is the custom to be abolished? 

"An toleranda sit consuetudo vigens in quibusdam paroeciis prae- 
sertim ruralibus, celebrandi per Parochum Missam lectam Feria V. 
in Coena Domini, quin peragi valeant eadem Feria et sequenti, cae- 
terae ecclesiasticae functiones prescriptae, ob clericorum defectum; 
vel potius abolenda?" 

The Sacred Congregation of Rites made reply, on June 28, 1821, 
as follows: 

"Yes (the custom may be tolerated of saying a low Mass on Holy 
Thursday, even when it is impossible to carry out any of the other 






LOW MASS ON HOLY THURSDAY. 



19 



S 



' 



ceremonies) with certain restrictions ; namely, that the Ordinary of 
the diocese endeavor to have the sacred rites and ceremonies of 
Holy Thursday, Good Friday and Holy Saturday carried out ac- 
cording to the small Ritual of Benedict XIII. published in 1725, in 
all parishes where at least three or four clergy can be had ; as re- 
gards other parishes, where there are no clergy, the Ordinary may 
permit for the accommodation of the people, that pastors, having 
first obtained permission each year, celebrate a low Mass on Holy 
Thursday, provided the low Mass be said at an earlier hour than 
the Mass in the cathedral or in the parent church." 

"Sacra eadem Congregatio re diligent er discussa, audit Con- 
sult oris voto, censuit respondendum: Affirmative, et ab mentem: 
Mens est ut locorum Ordinarii quoad paroecias in quibus haberi pos- 
sunt tres, quatuorve saltern Clerici, sacras functiones Feriis V. et 
VI. ac Sabatto majoris hebdomadae peragi studeant, servata forma 
parvi Ritualis s. m. Benedicti XIII. anno 1725 jussu editi; quoad 
alias paroecias, quae clericis destituuntur indulgere valeant ob 
populi commoditatem, ut Parochi (petita quotannis venia) Feria V. 
in Coena Domini Missam lectam celebrare possint, prius quam in 
cathedrali vel matrice, conventualis incipiat. Et ad D. Secretarium 
cum SSmo." 

This reply of the Sacred Congregation of Rites was approved and 
confirmed by Pius VII., on July 31, 1821. 

If we enquire farther, as to the reason of the present discipline of 
the Church, which forbids low Masses on Holy Thursday, we find 
that it is owing not to the liturgical quality of the day, because Holy 
Thursday has its own proper Mass, but to the reverence due to the 
most sublime mystery of the institution of the Holy Eucharist. 
This reverence is emphasized by the priests abstaining from cele- 
brating the divine mysteries, and receiving Holy Communion, 



v 



r 



20 



THE CASUIST. 



LOW MASS ON HOLY THURSDAY. 



21 



after the manner of the laity, from the hands of the bishop or parish 
priest, who says the Mass. For thus they recall more vividly the 
scene of the Last Supper, when the disciples received the body and 
blood of our divine Saviour under the species of bread and wine, 
from the hands of the Saviour Himself. 

"For as our divine Saviour/' says Benedict XIV., "first partook of 
the divine mysteries Himself, and then gave to His apostles, so it is 
becoming that the priest having first received the Holy Eucharist 
himself, should thereupon distribute it to the other clergy, who are 
attached to the church where the holy sacrifice is offered" (in 

Inst. 38). 

Since, however, there are many small country churches, where it 
is impossible to carry out the other rites and ceremonies of Holy 
Week, Benedict XIII. had a small ritual* compiled for the use of 
poor parishes, which enables them to have very simple services on 
Holy Thursday and Good Friday and Holy Saturday. And this 
seems to have been the opinion of Benedict XIV., for when he was 
Archbishop of Bologna, he ordained "si vero praeter Parochum 
in sua parochia, sacerdos aliquis. . . . Missam privatim Fer. 
V., VLfac Sabatto majoris hebdomadae celebrare ausus fuerit, ipsum 
graviter puniemus etc! 9 

Again the Sacred Congregation of Rites was asked : "An in Feria 
V. Coena Domini celebrari possit in ecclesia (non in privato valetu- 
dinarii sacello, sed publica in ecclesia) una Missa privata propter 
infirmos, excepta solemni" answered on March 27, 1773: arbitrio 

EpiscopL 

Again the Sacred Congregation was asked : "An liceat praedicta 
Feria V. Missam canere absque alterius hostiae consecratione et 
absque processioned The reply was : "Affirmative, juxta decretum 
Pii Papae VII., de venia saltern episcopi." D'Annibale, III., 402. 

♦Appeared in English under the title : "The Ceremonies of Holy Week in 
Churches with Only One Priest." (Wagner, New York.) 



.■ 



1 



• 



not. 20, remarks that in many places the bishop's permission is not 

asked. 

Fr. Schneider, S.J., interprets the words of the Congregation of 
Rites in the decree of June 28, 1821, "paroeciae quae clericis des- 
tituuntur" in this wise: "By parishes without clergy are meant not 
only parish churches, but other churches that rank lower than parish 
churches, but which have a priest attached to them, chapels in hos- 
pitals, in prisons, churches or chapels of small convents, of men 
or women, if they be cloistered and have their own priest and have 
the permission to reserve the Blessed Sacrament." (Manuale Sacer- 

dotum, p. 532.) 

To this Gasparri (de S S mo. Eucharistia, vol. I. n. 81) adds that 
in practice, a low Mass without any other ceremony, on Holy Thurs- 
day, may be said in the chapels of nuns who are in no sense cloistered, 
if it be inconvenient for them to go to the parish church, v. g., 

Sisters of Charity. 

To sum up, therefore, we say that in churches where there is 
only one priest, he is obliged to follow the small Ritual of Benedict 
XIII., if he wishes to hold services on the three last days of Holy 
Week. But if this is impossible, and he desires only to say a low 
Mass on Holy. Thursday, and to consecrate only one host and to 
have no procession of the Blessed Sacrament, then he is, generally 
speaking, obliged to get his bishop's permission for this, each year. 







t 



LEGALIZATION OF ILLICIT UNION. 



23 



-4 

IV. LEGALIZATION OF AN ILLICIT UNION. 

Mr. X, a Catholic, left his lawful wife, some years ago, and took 
up with another woman. He had to promise this other woman that 
he would marry her as soon as his legitimate wife died. This was 
the only condition on which she would live with him. After some 
time, Mr. X's lawful wife died, but he did not marry the woman 
with whom he was living. The woman kept urging him to get 
married, but he delayed for one reason or another, until finally he 
fell dangerously sick. He called in the priest, and before making 
his confession, he told him that he had never been married to the 
woman with whom he was living, that he had begun to live with 
her while his first wife was alive, and they had promised one another 
to get married as soon as the first wife should die, but had neglected 
to do so. After this much information, the priest suggested that 
as he was sick, he would marry them right away, with a dispen- 
sation, as the woman was a non-Catholic. The sick man then 
told the priest that such a course was impossible as the impedi- 
mentum impotentiae had existed in his case for the last few years, 
and in the opinion of several reliable physicians, his condition 
was permanent. He could not leave the woman, as every one 
thought they were husband and wife, and he did not have long to 
live. What could be done for them ? 

Answer. In the first place when Mr. X left his lawful wife, and 
went to live with another woman, under a mutual promise of 
marriage, in the event of the first wife's death, he was barred from 
ever marrying this second woman by the itnpedimentum criminis 
adulter* which is a diriment impediment If this were the only 

22 






difficulty in the way of Mr. X's marriage to the second woman, the 
case would be very simple. All that would be required, would be a 
dispensation "super impedimenta criminis adulter*" and then 
a marriage ceremony with the exchange of marriage vows. The 
woman being a non-Catholic, another dispensation would be re- 
quired, namely "dispensatio super impedimenta mixtae rehgionis." 
But in the mean time a new impediment to the marriage has arisen, 
viz., "impedimentum dirimens impotentiae." This impediment is 
created by the law of nature, and lies outside the jurisdiction of the 
Church. The Church has no power over it, and cannot therefore 
remove it. It stands, therefore, as an effectual bar to the con- 
tracting of this marriage. But could the Church not grant a 
"sanatio in radice"? We know that the Church does sometimes 
grant a sanatio in radice even when a diriment impediment juris 
naturae has arisen in the mean time. But the Church grants a sanatto 
in radice only when there was from the beginning a real marriage, 
which was invalid on account of a diriment impediment of the 
Church's own making. 

In this event, there has been a mutuus consensus from the start, 
but this mutual consent has been prevented from producing its 
natural and legitimate result, viz., a valid marriage, by reason of 
an impediment that the Church herself, by her own legislation, 
has put in the way. The mutual consent of both parties to the 
marriage contract is supposed to be enduring at the time the 
sanatio in radice is granted. This original mutual consent is what 
the Church cures. And it is cured by the removal of the impediment 
which rendered it inoperative. As the impediment was of the 
Church's own making, she can remove it. In which case, the mutual 
consent of the parties to the marriage immediately goes into effect 
and creates a valid marriage. It is evident that if the mutual consent 






24 



THE CASUIST. 



was rendered inoperative in the beginning by an impediment of the 
divine law, or the natural Iqw, the Church, having no jurisdiction, 
could not remove such impediment, and therefore could not cure 
the original consent. It is evident also, that in the case of the orig- 
inal consent being ineffective or inoperative by reason of an ecclesi- 
astical impediment, the consent can be rendered effective and opera- 
tive, or in the technical language of the law, cured, by the removal of 
the impediment even though, in the meantime, a diriment impedi- 
ment juris naturae, v. g. impotentiae, has arisen. For while this new 
impediment would act as an effectual bar to a new consent, it would 
not affect the consent that was given before it arose, and which con- 
sent is still enduring. In the case of Mr. X, if there had been a mar- 
riage ceremony performed between him and the second woman 
immediately after the death of his first wife, the marriage would have 
been invalid propter impedimentum criminis, but still it could have 
been cured in radice, by the removal of the impedimentum criminis, 
which is of ecclesiastical origin, supposing that the consent of both 
parties is still existing. And that consent is not vitiated, to use the 
language of the law, by the subsequent natural impediment. The 
only thing that prevented that consent originally from creating a 
valid marriage was the impedimentum criminis, and the only obstacle 
that bars its way at present is that same impediment of crime. The 
subsequent impediment of "impos" would be an effective bar to a 
new or renewed consent, rendering the same impossible by a law of 
nature, but would not affect a consent given before it arose. Mr. X, 
however, did not enter into a marriage contract with this second 
woman, and therefore there existed no marriage consent which 
might be cured. He desires now, for the first time, to elicit such 
consent. But now it is too late, for nature has intervened and rend- 
ered Mr. X incapable of entering into a marriage contract, and any 



/ 



, 



LEGALIZATION OF ILLICIT UNION. 



2 5 



consent that he gives now is, by the law of nature, invalid. Nothing 
can be done now to legalize, coram Deo et Ecclesia, Mr. X's mar- 
riage. What further steps should be taken by the priest, will de- 
pend on circumstances and the priest's good judgment. If Mr. X 
has but a short time to live and if, from the mature of his malady, 
there is no hope of his recovery, it might be best to leave him where 
he is, as from his statement there is no periculum peccandi to be 
feared. Under other circumstances, it would be advisable to remove 
him to a hospital. 



SAYING MASS IN FERMENTED BREAD. 



27 



V. SAYING MASS IN FERMENTED BREAD. 

Titius, a priest of the Latin rite, while traveling in the Orient with 
some friends, who are lay persons, also of the Latin rite, has oc- 
casion to say Mass, now in a Greek church, now in a Latin church, 
and again in a church of some other Oriental rite, and to give Holy 
Communion to his friends. In whatever church he says Mass, he 
uses the kind of altar breads they give him, whether fermented or 
unfermented, and he gives his friends Holy Communion in the same 
kind. He claims Jhat Leo XIII. abrogated the older discipline, 
which restricted a*Latin priest to the use of unfermented bread in 
saying Mass, thus leaving a Latin priest free to say Mass in a Greek 
church "in fermentato," and a Greek priest to say Mass in a Latin 
church, "in asymo." Titius, on his return to America, had occasion 
to go to his mission-church on Sunday to say Mass for his people, 
but by some mischance, he forgot to take along any altar breads. 
The distance to the home church was too great to permit sending 
there for altar bread and as Titius was already accustomed to say 
Mass with fermented bread, he sent to one of the neighbors for a 
piece of bread and said Mass with it, because, he said, the prohibi- 
tion to do so was only a law of Church discipline, which did not 
bind in the circumstances in which he found himself. On this oc- 
casion, he also gave Holy Communion to the faithful "in fermen- 
tato." What is to be thought of Titius' "modus agendi"? 

Answer. In the Oriental Church, the Armenians and the Maron- 
ites use unfermented bread, or azym, for the Holy Sacrifice of the 
Mass ; the Greeks, the Melchites, the Chaldeans, the Syrians and 
the Copts use fermented bread. The use of fermented bread by these 
several rites of the Oriental Church, dates back to the beginning of 
Christianity. The Latin Church uses only unfermented bread, or 

a6 



azym, although before the IX. or X. century, the use of fermented 
bread for the Holy Sacrifice of the Mass was not unknown in the 
Latin Church. The Council of Florence, in the decree for the union 
of the Greeks, allowed the Greeks to retain their ancient custom of 
consecrating in fermented bread, because there is no express com- 
mand of Our Divine Lord to the contrary, viz., that the Holy Eu- 
charist should be celebrated in azym. At the same time that the 
Council of Florence permitted the Greeks to continue to celebrate 
the Holy Eucharist in fermented bread, the Council issued a decree 
commanding both the Oriental and the Latin Church to adhere each 
to its respective rite in the celebration of the Holy Eucharist. This 
ruling of the Council of Florence (1440) was reaffirmed by St. 
Pius V. (1566) and later still by Benedict XIV. (1742)- 

Benedict XIV. says : "Since it was ordained by the General Coun- 
cil of Florence that each and every priest should celebrate the Holy 
Eucharist according to the rite of his Church, if the Latin Church, 
then in azym, if the Greek Church, then in fermented; and since it 
has been forbidden by the Roman Pontiffs, our predecessors, for a 
Latin priest to use the Greek rite, or a Greek priest the Latin rite. 
we do now strictly forbid, under pain of permanent suspension, 
Greek priests to celebrate Mass and other divine offices or to cause 
them to be celebrated according to the Latin rite, and Latin priests 
according to the Greek rite, under any pretext whatsoever of having 
obtained faculties from the Apostolic See or its legates, or even 
from the Grand Penitentiary, for Greeks to use the Latin rite or for 
Latins to use the Greek" (Const. "Etsi pastoralis," vi.) . 

This precept of the Church, commanding priests of different rites 
to conform to their own rite in all things pertaining to the celebra- 
tion of the divine mysteries, has always been very strictly interpreted 
by the theologians. St. Alphonsus, vi., n. 204, maintains that it is 



28 



THE CASUIST. 



the common teaching of theologians that a Latin priest would not 
be allowed to celebrate in fermented bread, even to give a dying 
person viaticum, neither would a Greek priest be allowed to cele- 
brate in azym. The only case in which this would be lawful, would 
be to complete the Holy Sacrifice of the Mass. 

But now there arises the question : Suppose a Latin priest is trav- 
eling through a country where the Greek rite prevails, how is he to 
say Mass? What rite shall he use? Is he at liberty to use the 
Greek rite, if it suits his convenience? Theologians do not agree 
as to what such a priest may do or must do under the circumstances. 
Some theologians think that the priest ought to observe the rite of 
the country through which he travels ; thus a Latin priest ought to 
say Mass with fermented bread, if he be traveling through the 
country of the Greeks, and a Greek priest ought to say Mass with 
azym if he happened to be journeying through the country of the 
Latins (cf. Ledesma iv. p. i). 

Others, as St. Alphonsus, think that a priest on his travels may 
use either rite, according as it suits his convenience. And this view 
of the matter, the holy doctor calls communis et probabilissima (vi. 
n. 204). Others again think that a Latin priest, passing through 
a country of the Greek rite, ought to celebrate Mass in azym, if 
there be a Latin Church within reach ; otherwise he may say Mass 
in fermentelfbrezd. Gasparri, de Euch. II. n. 805, thinks that it is 
never allowed for a Latin priest to say Mass with fermented bread : 
"Vera sententia est sacerdotem Latinum peregrinantem per loca 
Graecorum et in Graeca ecclesia celebrantem et sacerdotem Graecum 
peregrinantem per loco Latinorum et in Latina ecclesia celebrantem, 
non solum posse t sed etiam posse Latinum in fermento, Graecum in 
azymo sacrificium eucharisticum off err e. Id enim ex constitu- 
tionibus pontificiis quae hac de re agunt, non obscure eruitur." 



SAYING MASS IN FERMENTED BREAD. 



29 



We prefer to follow the opinion of those who maintain that a 
priest, on his travels, may say Mass either with azym or with to* 
mented bread, if he says Mass in a church of another rite than his 
own, and there be no church of his own rite in the place, because 
the pontifical constitutions, issued in regard to this matter, apply 
only to priests having a domicile or permanent dwelling in a country 
of another rite. Thus v. g. Noldin S.J., de Euch. 106, b. says: 
"Sacerdos in iHnere constitutus potest in locis, ubi deest ecclesia 
proprii ritus, pro lubitu vel in azymo, vel in fermentato consecrare. 
Neque obstat citata constitute benedictina, quippe quae de tilts 
tantum sacerdotibus agat, qui domicilium in loco alieni ritus habentr 
In answer, therefore, to the question whether Titius did right m 
saying Mass in a church of the Greek or Latin rite and using fer- 
mented or unfermented bread, as it suited his convenience, we would 
say that Titius ought to have gone to a church of the Latin rite, 
whenever it was possible to do so, and to have said Mass in azym. 
But whenever he found himself in a place where there was no 
church of his own rite, he was at liberty to say Mass in a Greek 
church and to use fermented or unfermented bread, whichever he 

preferred. 

To the second question, namely, whether it was lawful to say 
Mass at his mission church, after his return from his travels, in 
fermented bread, because he had no azym, we answer it was unlaw- 
ful. There is no theologian who would justify him in that. The 
precept to hear Mass on Sunday is less binding than the precept to 
says Mass in one's own rite, in one's own country. As we said above, 
not even to administer holy Viaticum, would this be allowed (cf. 
Lehmkuhl, II, n. 121, Gasparri, de Euch. n. 804). 

St. Alphonsus, VI. n. 204, writes : 

"Dubitatur 2. An in casu necessitatis, ad praebendum viaticum 



3o 



THE CASUIST. 



infirmo possit sacerdos Latinus consecrate in fermentatot Affirm- 
ant Mayor et Tanner, quia ut dicunt, praeceptum divinum sus- 
cipiendi Viaticum praevalere debet praecepto humano celebrandi in 
azymo. Sed negat communis et probabilior sententia, quam tenent 
Navarra, Contensou, Tourt\ely, Antoine, Suarez, Soto, Ledesma, 
Diana, Lacroix, Layman, Tamburini, Bonacina" 

Regarding the Communion of the faithful of the different rites, 
the discipline to be followed now is contained in a decree of Leo 
XIIL, 1893 : 

"Omnibus fidelibus cujuscunque ritus sive Latini sive Orientalis, 
degentibus in locis, in quibus non sit ecclesia aut sacerdos proprii 
ritus, facultas in posterum a s. sede conceditur, s. communionem non 
modo in articulo mortis et pro paschali praecepto adimplendo, sed 
etiam quovis tempore devotionis gratia juxta ritum ecclesiae ex- 
istentis in praedictis locis, dummodo catholico sit, recipiendi" 

A year later, in 1894, the same Pontiff, Leo XIIL, extended this 
privilege to all the faithful who could not attend a church of their 
own rite, without serious inconvenience on account of the distance, 
of receiving Holy Communion in a church of another rite, in azym 
or fermented according to the rite of the church attended, provided 
said church be in communion with the Holy See. The lay people, 
therefore, who traveled with Titius in the Orient, ought to have 
gone to a Latin church for Holy Communion, if there was one in 
the place. Otherwise they might receive in any church, provided 
it were Catholic 






VI. DEFRAUDING AN INSURANCE COMPANY. 

A CASE OF RESTITUTION. 

A father wished to have his son who was not in very good physi- 
cal condition, insured in his labor union, and fearing he would not 
Z ^led by the examining physician, sent another son to undergo 
^'physician's examination, and a policy of several thousands o 
dollL was taken out. ■ After paying premiums on tins policy fo 
several years, the father became worried about the honesty of his 
LILd of procuring the policy. He says that in his ~^"£ 
to a priest and told him the whole story of the pohcy and *e priest 
told him it was all right. Recently the son died and the father 
applied for the money, but has received none as yet, and it is rumored 
that on account of the great number of recent labor troubles, he 
union in question will, in all likelihood, be unable to satisfy the 
claim. In case the union does settle the claim, either m whole o 
in part, will the father not have to forfeit all that he paid in for 
premiums, as he paid the premiums to perpetuate an evident fraud . 
And what responsibility rests on the priest,, to whom the father says 
that he went for advice, and who told him that it was all right to 
continue the payments of the premiums? _ 

Answer. When the father wished to have his son insured in 
his labor union, he wished to enter into a true and burdensome con- 
tract with the labor union. This contract is known in moral the- 
ology as contractus aleatorius, in quo illud quod datur vel promxtMur 
ab uno vel alterutro contrahente, pendet ab incerto eventu. The 
contract depends on an uncertain contingency, like the throw of the 
dice Now one of the conditions of an aleatory contract is that the 
risk to be taken be made known honestly and without equivocation. 

3* 


















-r 



32 



77/£ CASUIST. 



If the person assuming the risk is knowingly deceived by the other 
party to the contract, regarding the substance of the risk, then the 
contract is void by the law of natural justice, since the person as- 
suming the risk was deceived as to the substance of the contract. 
In a contract for life insurance, the party seeking insurance must 
not fraudulently conceal or distort the risk assumed by the company 
or labor union, but must submit to a physical examination and 
answer honestly and without equivocation all legitimate questions 
concerning his physical condition past and present. If while un- 
dergoing the examination, the applicant for life insurance conceal 
some disease or ailment, the presence of which greatly increases the 
risk assumed by the company, then he wilfully deceives the com- 
pany regarding something tKat is substantial to the contract and 
forfeits all claim to any money paid him, and must repair any 
damages that the company may have suffered by his action. In the 
case submitted to us, there has been practised a complete deception 
on the labor union. One person has been substituted for another. 
The labor union was made to believe, by fraud, that it was taking 
a risk on the life of A, while in reality it was taking a risk on the 
life of B. The union had no knowledge of B, nor of any risk con- 
nected with B's life, and, in fact, did not make any contract condi- 
tioned by anything connected with B. Therefore, in truth, the labor 
union had no contract at all with the father of A and B, and is 
under no obligation whatever to pay him any money, for the death 
of his son. Therefore the father may not keep the insurance 
money, if the labor union eventually pays him any. 

But now there arises a second question, concerning the premiums 
paid to the labor union by the father. Must the father forfeit these, 
because they were paid to perpetrate a fraud? 

No, he must not. The labor union has no title or claim to these 




» 1 






A CASE OF RESTITUTION. 



33 



premiums. The only claim the company could have to them, would 
be as payment for carrying the risk on the son's life. But, as there 
was no valid contract from the beginning, and as the labor union 
was not carrying any risk on the life of the son, it can have no 
claim to this money. We mean, of course, in foro interno, ante 
judicis sententiam. We are trying this case in the court of con- 
science. If, therefore, the father were to receive the insurance on 
the life of his son, he would be justified in subtracting the amount 
of the premiums, before making restitution to the labor union. But 
he would be obliged to reimburse the union for any expenses they in- 
curred on his son's account, as, for example, fees for medical exam- 
inations and certificates, etc. This, however, might be considered 
cancelled by the interest that the paid-in premiums earned for the 

labor union. 

We now come to the third question. The father says that when 
his conscience began to trouble him about the honesty of his method 
of having his son's life insured, he went to a priest and laid the 
whole matter before him, and the priest told him that "it was all 
right." The father had been paying the premiums on the policy 
for several years, when he went to consult the priest. And it is now 
some three years since he sought the priest's advice. 

Supposing now that the man really put the case before the priest, 
as it is stated here, and that the priest understood him rightly and 
told him that the means he used to procure the policy were honest 
(suppositions that we find considerable difficulty in making), what 
would be the priest's liability before God? How much restitution 
would he be bound to make, if any? 

The question is treated in moral theology under the heading "de 
restitutione ob consilium doctrinale nocivum" 

Whoever, by virtue of his office, is authorized to give advice, and 



I 



34 



THE CASUIST. 



through culpable ignorance, or evil intent, gives counsel that proves 
harmful either to the person seeking the advice or to a third person, 
he is bound in conscience to repair all the damages that result from 
his wrong advice. As to this there is no doubt, be the person giv- 
ing the advice or counsel a physician, or be he a lawyer, or be he a 
priest, provided only that he give the advice or counsel by virtue of 
his office, in the things pertaining to his profession, and of which the 
public has a right to demand of him that he know what is right and 
wrong, what is lawful and what is forbidden. The people have a 
strict right to require of a professional man, who by virtue of his 
profession is authorized by society to give counsel to those seeking 
it and to protect the interests of all concerned, that he possess the 
knowledge his office calls for and that he exercise reasonable dili- 
gence in the use and application of his knowledge. If at any time 
he should realize that his professional knowledge is insufficient for 
the right exercise of his office, and that harm may result to his clients 
or to other persons, by advice or counsel proceeding largely from 
unjustifiable ignorance, he is bound in conscience to suspend the 
exercise of his office or profession, until he acquire the necessary 
knowledge, and if he fail to do this, he sins against his conscience, 
and lays himself liable for all the damage that may result from his 
lack of knowledge of his profession. Now the priest who assumes 
the care of souls, is bound in conscience to know the ordinary teach- 
ings of moral theology on justice and rights, what is honest and 
dishonest in the ordinary business relations of life, when a man is 
bound to make restitution, etc. He can scarcely be ignorant of 
these things and still have the cure of souls, without grievous sin. 
His ignorance of the common laws of justice, in his actual position, 
will ordinarily amount to a gravis culpa. And therefore he must 
repair the damages resulting from it. Now, in the case which oc- 



\ 



A CASE OF RESTITUTION. 



35 



cupies us at present, if the labor union should pay the insurance to 
the father of the dead boy, then when the father, less the amount of 
the premiums, has returned the money to the labor union the case 
is settled. But suppose that the labor union is unable to pay any 
part of the insurance. What is the priest's liability in that event? 
It is very simple. If, in reality, the father of the dead boy would 
have ceased paying the premiums, had the priest so advised him, and 
allowed the policy to lapse, then the priest is bound to pay to the 
father the amount of the premiums from the time he advised him 
wrongly up to the time of the son's death. For we consider his ad- 
vice to have been the efficacious cause of the continuance of these 
payments, and therefore of that much damage to the father. And 
as the advice was sought and given by virtue of his office as a priest, 
the advice was consilium doctrinale nocivum, vi officii datum, ex- 
ignorantia graviter culpabili, and the giver of it must repair the 
damages resulting from it. 



h 



r 



VII.— ABSOLUTION FROM CENSURES RESERVED 

BY THE BISHOP.* 

Titius, in his confession preparatory for his Easter duty, acknowl- 
edges to Caius among other things that he once committed incest 
with a relative in the second degree. From the remarks of the con- 
fessor he learns (what he did not know before) that in the diocese 
this sin is reserved to the bishop with the censure of excommunica- 
tion ; and, therefore, that he must make his confession to the bishop, 
as Caius had no faculties to absolve him. However, Titius is in 
poor health and can not go to the bishop, whose residence is a great 
distance from the place ; moreover, he usually goes to Communion 
with his wife on the next day (Thursday in Holy Week), and if he 
omits it this time it will cause scandal and loss of reputation, espe- 
cially since his wife already suspects him of the very crime he has 
committed. On hearing this, Caius advises him to go to the pastor, 
who has, he says, the necessary faculties. Titius reluctantly con- 
sents, and when he tells his story to the pastor, the latter distresses 
him still farther by telling him that his faculties, which were only 
ad tempus, had recently lapsed. The pastor then consoles him by 
telling him that he can absolve him on 6ther grounds ; since, by a 
happy chance, he had lately received faculties to absolve from Papal 
censures, a fortiori he could do the same in cases reserved to the 
bishop ; for, as the ancient theological saw has it: "Qui potest plus, 
potest etiam et minus in eodem genere" 



Quaeritur: 

i. Whether and when, outside of danger of death, an ordinary 



♦Dr. Checchi, in Analecta EcclesiasHa. 

3 6 






♦ 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 37 

confessor can absolve a penitent from censures reserved to the 

bishop? 

2. Whether Caius could have absolved Titius from the episcopal 

censure on the grounds that he was ignorant of its existence ? 

3. Was the pastor's course of action proper, ana was his reasoning 

correct? 

Ad. I. The question is concerning absolution from censures re- 
served by the Bishop. A special decree of the Holy Office (June 23, 
1886) regulates the question of absolving from censures reserved to 
the Pope. But since this decree does not affect episcopal cases, we 
must here follow the ancient law of the Decretals. 

The question is, moreover, concerning absolution extra mortis 

articulutn. 
The Council of Trent, treating of these matters, says : 
"Verumtamen pie admodum, ne hac ipsa occasione aliquis pereat, 
in eadem Ecclesia Dei custoditum semper fuit, ut nulla sit reservatio 
in articulo mortis, atque ideo omnes sacerdotes quoslibet poenitentes a 
quibusvis peccatis et censuris absolvere possunt ; extra quern articu- 
lutn sacerdotes, cum nihil possunt in casibus reservatis, id unum 
poenitentibus suadere nitantur, ut ad Superiores et legitimos indices 
pro beneHcio absolutionis accedant." 

Accordingly any one who falls under a censure reserved by the 
bishop, and is not in danger of death, is ordinarily bound to go per- 
sonally to that superior, not being able to receive absolution from an 
ordinary confessor. However, it can easily happen that on account 
of some physical or moral impediment the penitent is lawfully hin- 
dered from going to the bishop, while at the same time there may 
be an urgent reason for his getting absolution— v. g., he can not omit 
receiving Communion or saying Mass without scandal and loss of 
reputation ; or he will have to miss his yearly Confession or his Eas- 



! 



3* 



THE CASUIST. 



ter Communion ; or he will have to remain a long while in the state 
of mortal sin. In such cases neither the Church as a tender mother 
nor any superior can be considered as wishing to bind the penitent 
to something impossible, or, at least, very onerous. Therefore under 
such circumstances the faculties to absolve belong to any confessor. 
But his course of action will depend upon the nature of the case 
and the length of the time that the penitent will be hindered from 
going to the bishop. 

Let us suppose in the first place that the impediment to seeing the 
bishop is brevis ttmporis — that is to say, not lasting beyond six 
months. Given such an impediment and an urgent case, the con- 
fessor can absolve the penitent at least indirectly, imposing on him the 
obligation of appearing, when circumstances would permit, before the 
bishop or his representative for such cases, to be absolved directly. 

If the impediment to seeing the bishop is longi temporis (between 
six months and five years), the penitent can be absolved directly; 
with the obligation of appearing before the bishop or his delegate if 
the sin be reserved with a censure, but otherwise not. If finally the 
impediment is perpetual, or beyond five years, the reservation is con- 
sidered as simply done away with, and the penitent is absolved 
directly without obligation upon him to appear before the higher 
authorities. (Cf. S. Lig. VI. n. 585; VII. n. 85 ss.; Bucceroni, 

De. Cens. 47 ss.) 

Ad. 2. Affirmative : that is, Caius could have absolved Titus from 
the sin of incest reserved by the bishop with the accompanying ex- 
communication. 

If it were a question of a case reserved with censure by the 
Roman Pontiff, there would be no difficulty. For it is the common 
opinion of Doctors that reservation of such sort is not incurred by 
those who are unaware of the censure ; for papal cases are reserved 



\ 



* 



4\ 



{ 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 3 9 

principally and immediately on account of the censure, from which, 
as a rule, ignorance excuses. Since in these cases the censure is 
reserved directly, and the sin to which is attached only mediately, 
therefore as the sin is indivisible from the censure, when the cen- 
sure is reserved, the sin also is reserved ; and on the other hand, 
since the censure is the reason for the reservation of the sin, when 
the reason (viz., the censure) does not hold, the sin is no longer 
reserved. (Cf. S. Lig. vi, n. 580.) 

So when any case is reserved by the bishop with censure, it is 
equally certain that the censure is not incurred by one who is una- 
ware of it. But the question arises whether, granted that the person 
is excused by ignorance from the episcopal censure, the sin itself 
may not remain reserved. 

On this point theologians are divided, as may be seen in S. Lig. 
(VI. n. 581, dubit. 2) Aversa (De poenit. q. 17, Sec. II, Sec. 6) 

says : 

"Posset quidem simpliciter tolli censura, et remanere reservatio 

peccati. Realiter tamen et concomitanter ita se res habet, ut, ablata 

censura, eo ipso cesset etiam reservatio peccati . . . et ab initio si 

excusetur quis ab incurrenda censura, quamvis non a culpa, ut 

contingere potest ob ignorantiam, excusetur pariter a reservatione 

ipsius culpae. Quia nempe ex intentione Superioris ita coniungitur 

culpae reservatio cum censura, ut nonnisi cum ilia inveniatur. Et 

in hac doctrina communiter Doctores conveniunt. ,f 

Among more recent writers, Card. D'Annibale (Summ., Vol. I. 
n, 340, edit. III.) expressed this opinion: 

"In casibus a Rom. Pontifice seu sibi, seu Ordinariis reservatis, 
convenit reservationem censurae esse principalem, peccati accesso- 
riam; quamobrem, si quid excusat a censura, reservatio penitus 
cessat In his, quae Ordinarii sibi reservarunt, non satis convenit ; 



4o 



THE CASUIST. 



sententia communior tenet, utramque reservationem aeque princi- 
palem esse; ac proinde, etsi censura exulet, peccati reservationem 
manere putant; minus communis, quae mihi verior videtur, tenet, 
in his idem iuris esse, ac in censuris a Rom. Pontifice reservatis: 
atque ideo, si censura non incurritur reservationem cessare." And 
this view is sustained by Ballerini-Palmieri (Vol. V, n. 476, Edit. 

III). 

The contrary opinion, however, is held as the better one by St. 
Alphonsus (he cit., n. 581). For this view the following reasons 
are generally offered: 

a. Papal and episcopal cases differ in this, that in the papal cases 
the censure is reserved principally and indivisibly ; in episcopal cases 
the sin is reserved principally and per se, and the censure is attached 

to it 

b. This is confirmed by the words in which episcopal reservations 
are expressed in the table of reservations : "Casus reservati, quibus 
est adnexa excommunicatio." 

c. The same is proved from the end of reservation, namely, that 
sinners should be more strictly bound, and that they should be de- 
terred from sin by the double reservation. 

But the answer to these reasons is not difficult. 

As for the first reason advanced, it is certain that Canon Law 
does not back up the distinction ; and moreover, the words in which 
the reason is expressed do not present an argument for it, but only 
state the opinion itself in another form. 

To the second D'Annibale answers (loc. cit. nota 25) that the 
words used in expressing these reservations on the tables do not af- 
ford an argument: "nam et nexus pignori fundus in iure dicitur 
(L. 2, de Curat, furios. dan.) et res pignori nexae dicuntur (L. 22, 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 41 

de Jure fisci) et nemo profecto fundum vel rem accessoria pignori 

dixerit." 

Finally it is not reasonable that for less serious crimes— and such 
are those reserved by bishops when compared with those reserved 
by the Pope— the reservation should be more strict than for graver 
ones. We conclude therefore that the opinion which holds that 
censures reserved by the bishop are on the same level in law as those 
reserved by the Pope, is not wanting in grave probability, both in- 
trinsic and extrinsic. And in this case there were grounds enough and 
to spare for Caius to act on and absolve Titius. 

But even if Caius wished to follow the view of St. Alphonsus that 
in episcopal cases the reservation remains even though the censure 
for any reason do not hold, he could still have absolved Titius. 

For, in the first place, it is evident from the case that Titius was 
ignorant not only of the censure, but of the reservation also. Now 
although the more common opinion holds with St. Alphonsus (VI. 
n. 581 ) that ignorance of the reservation does not excuse, the oppo- 
site view is held by a number of theologians (Cf. Gury-Ballerini, 
De Sacramento Poenitentiae, n. 383). 

In the second place, even disregarding the point just made, there 
are other features in the case which are in favor of Titius. He is 
in poor health, and can not go personally to the bishop, who lives 
a great distance away ; moreover, since he is accustomed to receive 
•Communion on Holy Thursday, he can not omit it without scandal 
and loss of good name, especially since his wife already suspects 
him of the incest. There is question, therefore, of a penitent who, 
though not in danger of death, is legitimately impeded from going to 
the bishop ; and together with this impediment— brevis temporis ap- 
parently—there is an urgent reason why he should communicate. 
Now, as is evident from the answer given above to our first question, 



4 






4* 



THE CASUIST. 



in such a matter of urgency Caius could absolve Titius saltern 
indirecte, with the obligation of going to the bishop or his delegate 
whenever circumstances would permit. I say saltern indirecte, ac- 
cording to the more common opinion, given by St. Alphonsus (VI, n. 
585), and based on the statement of the Council of Trent (Sess. 
XIV, Cap. VIII) that ordinary priests have no power in reserved 
cases. But other theologians are of opinion that even in episcopal 
cases the absolution is always direct, even though the impediment be 
only brevis temporis. The passage from Trent cited by St. Alphon- 
sus does not affect this, for it clearly supposes that there is ability 
to reach the superior authorities: "Extra quern articulum, sacer- 
dotes, cum nihil possunt in casibus reservatis, id unum poenitentibus 
persuadqre nitantur ut ad superiores et legitimos indices pro beneficio 
absolutions accedant." 

These theologians admit, however, that in such cases there remains 
upon the penitent the obligation of appearing before the superior, 
not indeed for Confession, but to receive from him a fitting punish- 
ment or salutary warnings ; so that the onus put upon the penitent 
is practically the same. 

Ad. 3. Just as Caius could have absolved Titus, so, too, the pastor 
could do it. Therefore his action, considered in itself, was right. 

But his line of reasoning was wrong. For no confessor, even 
though he have faculties to absolve from Papal cases, can absolve 
validly or licitly in cases which the bishop has reserved, unless he has 
special faculties to do so. Clement X put an end to the controversies 
which were formerly aroused about this matter, especially with re- 
gard to the privileges of regulars, in the Constitution Superna, which 

declares : 

"Ex facultatibus per Mare magnum aliave privilegia regularibus 
cuiuscumque ordinis^stituti, aut societatis, etiam Iesu, concessis, 



\ 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 43 

factam eis non esse potestatem in casibus ab Episcopo reservatis. . . . 
Et habentes facultatem absolvendi ab omnibus casibus Sedi 
Apostolicae reservatis, non ideo a casibus Episcopo reservatis posse 

absolvere." . 

The pastor, therefore, has made a wrong application of the prin- 
ciple- "Qui potest plus, potest etiam et minus in eodem genere." This 
principle holds good when the more and the less are in the same 
proximate genus ; for instance, if one have the power of dispensmg 
in certain vows, he has the power of commuting the same. So 
also if he can absolve from papal cases reserved speciali modo, he can 
absolve from those reserved simpliciter. But papal and episcopal 
reserved cases, though coming under the same remote genus of re- 
served cases, are not in the same proximate genus. 



/ 



; 



VIII. CLERICAL CENSURE. 

Father X has been forbidden by his bishop, under pain of sus- 
pension, to be incurred ipso facto, to enter a saloon for a period of 
one year, for any purpose whatever, except to administer the last 
sacraments. This is the condition on which the faculties of the dio- 
cese have been restored to Father X. He has given the bishop 
grievous cause for complaint in the past, and caused considerable 
scandal to the faithful, and the bishop does not feel justified in 
restoring the faculties of the diocese to him, except on the condition 
stated above. Father X is careful to observe the condition, while 
within the limits of the diocese, but whenever he goes beyond the 
limits of the diocese he feels free to enter a saloon, if he chooses, 
and does not believe that he incurs the suspension. He argues that a 
bishop's authority is limited to the territory of his diocese, and 
never reaches beyond the diocese, because that would be an invasion 
of another bishop's authority, which is evidently forbidden by the 
canons of the Church. 

He desires to know whether he has incurred the censure of sus- 
pension by entering a saloon beyond the limits of the diocese, and 
whether (in case he has incurred the suspension) he has become 
irregular by violating the censure of suspension and exercising his 
office of the priesthood. 

Answer. — In answering this question, we desire to say a word 
about the reasons for which a bishop may suspend a priest. En- 
tering a saloon is not a grievous sin. Now the law says that sus- 
pension, being a grave punishment, requires a grave sin. How 
then can a bishop inflict a grave punishment on a priest who is 
guilty only of a venial sin, or, perhaps, of no sin at all? To this 



• 



CLERICAL CENSURE. 



45 



we answer: While the thing forbidden by the bishop may be of 
lesser consequence when viewed in itself, nevertheless, « may take 
on a serious aspect, when viewed in the light of circumstances which 
m ake it a source of grave scandal or personal danger or subvers.ve 
of some serious object which the bishop wishes to attam. Proinje 
cum finis proecepti sit gravis et res praecepta f%£" g£P* 
gravitas non ex materia, sed ex fine desumitur." (Schmalzgr. 1. 5, **• 

39 But tf'L thing commanded or forbidden by the bishop under 
pain of suspension, be in itself of small consequence, and have only 
a slight connection with the object proposed by the bishop, then the 
transgression of the bishop's precept is only a venial sm at most, 
both in itself, and by reason of its object, and therefore xnduces no 
suspension. In the words of Ballerini : 

"Quamquam vero praeceptum de re per se Xevx, non obhget sub 
gravi atque adeo transgressio ejus nee gravem culpam nee poenam 
censurae inferat; praecipi tamen sub gravi et censura won potes 
res levis in se spectata, quando gravis evadat ratione aut scandah, aut 
periculi aut finis intenti, etc. Ita v. g. excommunicato ob clena per- 
cussionem in se levem (levem nempe in ratione percussionis ; at non 
levem in ratione inhonorationis), ob gravem nempe irreverentiam 
status clericalis-ita juste sub censura praecipitur, ut qmdam inter- 
veniant publicae processioni ad rem gravem ordinatae-item contra 
tantillum ingredientes januam monasterii-item in clericos nutn- 
entes comam. Secus tamen (S. Alp. n. 31) si res et levis in se foret 
et ad finern intentum leviter conduceret." (Vol. VII, 128.) 

When there exists doubt as to the gravity of the thing com- 
manded, or forbidden, or its close connection with the end the 
bishop hopes to attain, we must decide in favor of the bishop and 
the validity of the censure-rfandutn est pro auctoritate PraelaH 



/ 






4 6 



THE CASUIST. 



quae est in possessione, atque adeo edicto censurae suam vim esse 
asserendam. 

There can be no doubt, therefore, that the bishop acted wholly 
within his rights, when he forbade Father X to enter a saloon, under 
pain of suspension ipso facto; because there was both scandal and 
grave danger connected with the saloon for Father X. And while 
entering a saloon may not be a grave matter in itself, still under 
the present circumstances it becomes a grave matter, and may justly 
be forbidden by the bishop under pain of suspension. 

We come, now to the second question, viz.: Could Father X's 
bishop suspend him for entering a saloon outside of the diocese? 
We must distinguish here between a diocesan statute and a personal 
command given to an individual. There is question here of a per- 
sonal command. A diocesan statute is limited by the territory or 
boundaries of the diocese. It binds no one outside the diocese. A 
personal precept or command, on the contrary, follows the individual 
like his shadow, say the canonists, "haeret ossibus" no matter where 
he goes. 

St. Alphonsus, treating this question (1. 7, n. 23), gives two opin- 
ions of the theologians, one that a bishop can lawfully bind by cen- 
sure a subject of his diocese, outside the limits of the diocese, the 
other that he can not, and both of these opinions the holy Doctor 
calls probable, though the one that holds that a priest incurs sus- 
pension, even outside the diocese, seems to him the more probable. 
There are a number of theologians who hold that the power of a 
bishop is restricted to his diocese even in the matter of a personal 
command to an individual, but as Ballerini, after Laymann, points 
out, they rest for their argument on the chapter "Ut animarum, de 
constitutionibus, in 6°" of the Corpus, where there is question only 
of episcopal laws or diocesan statutes, and not of personal com- 



S 



CLERICAL CENSURE. 



47 



mands. And therefore their opinion has no solid probability. When 
a bishop forbids a priest of his diocese to do something, under pain 
of suspension, he pronounces judgment within his own territory. 
That the judgment goes into effect outside the diocese, when the 
crime is committed outside the diocese, does not imply that there is 
any invasion of another bishop's territory, because the censure is in- 
curred ipso facto, without a trial at law or any legal proceedings 
"sine cognitione causae et sine strepitu judiciario," because, as it 
says in the Canons, "excommunicato et quaevis censura latae sen-^ 
tentiae tacitam et veluti insensibilem executionem secum trahit." 

(C. Past oralis 53, de Appell.) 

The true reason why a bishop may not lawfully punish by censure 
in another bishop's diocese is that such a proceeding would be an 
invasion and a violation of another's judicial territory, which is 
strictly forbidden by the law. But where a bishop's sentence of 
censure goes into effect ipso facto, without any legal proceedings 
or trial in court there is no invasion or violation of another's juris- 
diction. 

Ballerini says that a bishop certainly has the right to suspend his 
priest -for the transgression of his command, even though the priest 
transgress outside the diocese, nor can the opinion that denies this 
be said to have any other than a certain external probability, which 
suddenly vanishes, if you examine the reasons on which it rests. 

(cf. Ball. VII, 101.) 

As regards the irregularity that Father X might have incurred, 
by exercising the ministry while under censure, it will suffice to say, 
that as such an irregularity would be "irregularitas ex delicto," which 
is not incurred except where there is full knowledge and consent of 
the irregularity, it all depends on the state of Father X's con- 
science, when he exercised his ministry. If he was in good faith, 



4 8 



THE CASUIST. 



he is not irregular. If he acted with a doubting conscience not 
knowing whether he was incurring an irregularity or not, but will- 
ing to take a chance, he incurred the irregularity, because he acted 
"cum conscientia practice dubio" and made himself liable for the 
consequences. 






IX. COMMUNION OF A NEWLY BAPTIZED CONVERT. 

* 

A young Hebrew, Baruch, makes the acquaintance of Bertha, a 
Catholic girl, and offers to marry her. She refuses unless he agrees 
to embrace the Catholic faith. He is willing, and after receiving 
instructions he becomes actually convinced of the truth of the Cath- 
olic belief and is desirous of being baptized, this to be followed by 
marriage with Bertha. The baptism takes place on the eve of the 
marriage. Both wish to receive Holy Communion on their wedding 
day. To the officiating priest, however, Communion without previous 
Confession appears a novelty not to be countenanced, and he de- 
mands Confession from Baruch. As the newly baptized convert can 
not think of a sin since his just received baptism, the priest makes 
him confess some sins of his former life, and then gives him ab- 
solution. 

What is to be said about this case ? 

Answer. 

1. A conversion on account of marriage is to be treated with the 
greatest precaution, and while the applicant wishing to become a 
convert for such reason must not be refused, he should be carefully 
examined. Even a worldly reason may lead to true conversion. 

2. A candidate for baptism must, before receiving this sacra- 
ment, confess to the Catholic faith; he must also awaken con- 
trition for his sins, and must affirm his resolution and give promise 
to lead a true Christian life, but he does not have to confess his 
sins. Upon true repentance these are forgiven him in the sacra- 
ment of Baptism and do not need absolution by the priest. 

3. An adult, who receives baptism after being sufficiently in- 
structed, should in accordance with old established practice of the 
Church receive Holy Communion immediately, without Confession. 



49 









5° 



THE CASUIST. 



4. The demand of a confession from Baruch shows lack of knowl- 
edge on the part of the priest, the more so as he let the newly bap- 
tized one confess some sins from his previous life so as to be able 
to give him sacramental absolution. Sins committed before baptism 
are no matter for absolution any more than they are for confession ; 
such absolution is invalid and — unless excused on account of ignor- 
ance — sacrilegious, just as sacrilegious as if one would pronounce 
the words of consecration over water with intention to change the 
water into the Holy Eucharist. . 



* 



X. MIXED MARRIAGE BEFORE A PROTESTANT 

MINISTER 

Sylvia, a Catholic, makes the acquaintance of a young Protestant, 
who wishes to marry her. He insists, however, upon marriage by 
a Protestant minister. Sylvia, though warned by her confessor of 
the sinfulness of such a marriage, finally assents to his proposition. 
The following Easter she comes to Confession, seemingly repentant 
of the wrong done, and promises to use all her influence upon her 
husband; but so far she has been unable to make him promise a 
Catholic bringing up for the children, or to get his consent to a 
repetition of the marriage ceremony before a Catholic priest and 
witnesses. 

The questions are : 

1. Is the marriage valid ? 

2. If not, must Sylvia leave her husband, or may she fulfil her 
conjugal duties in view of his "bona fides/' or can and must the 
marriage be validated "in radice"? 

3. May the confessor give Sylvia absolution and admit her to 
Holy Communion, and on what conditions ? 

Solution and argument. 

1. The answer to the first question depends upon whether at 
the place of the marriage ceremony or at the place of abode of 
both participants the decree of Trent on clandestinity has been 
promulgated and made binding for Protestants— i. e., promulgated 
before the Protestants formed independent religious communities. 
If this is the case, and if no general dispensation has been granted 
by the Holy See in regard to mixed marriages, such as has been 
done for some territories, or an extension of the declaration of Ben- 

5i 






* 



• •, 



• • 






• •. 



• • 









• • 



• • 



• • 



• • • • 
» • • 









••- 



* • 












• • • • • 

• : : : 



• • • 

• • ■» 

• # • • • 



* 

* • • 

• • « • 

» • • 






5 2 



THE CASUIST. 



edict XIV, pronouncing Protestant mixed marriages valid, as in 
Holland, then Sylvia's marriage is invalid. But if the decrees of the 
Council of Trent have never been promulgated, or not until AFTER 
the Protestants had formed independent religious communities, 
whether at the domicile of either of the contracting parties, or (in 
case the ceremony took place elsewhere) at the place of marriage, 
then Sylvia's marriage is valid, notwithstanding the Protestant cere- 
mony, because the intention of entering into true matrimony can not 
be doubted. 

2. If the marriage is valid, Sylvia may of course fulfil her duties 
in spite of the sinfulness of such marriage. Whether she must do 
so is not so unconditioned and can not be decided in a general way. 
In deciding this point it would have to be taken into consideration 
whether the refusal of the wife would be likely to induce her hus- 
band to the, for him, difficult consent to a Catholic education of the 
children. An obstinate non-compliance on the part of the wife 
would, however, very seldom have the desired effect, would on the 
contrary be productive of virulence, so that for these reasons such 
non-compliance can rarely be an obligation, and for the case in view 
it will be sufficient to regard it as permissible. 

If the marriage is invalid, neither the bona fides of Sylvia nor 
the bona fides of her husband can justify their conjugal relations 
in such a manner that the confessor can positively permit them. 
They may only be permitted as long as the validity or invalidity 
of the marriage remains in doubt even after careful investigation, 
but not if the marriage is undoubtedly invalid. Even then, how- 
ever, it is a question of prudence whether the confessor, so long as 
Sylvia believes firmly in the validity of her marriage, should not 
be silent on the subject, until the affair could with promise of success 
be settled definitely. 



• c 
'J 



•: 






,• • 



• < 



• • • 
• • • • • 






MIXED MARRIAGE BEFORE A PROTESTANT MINISTER. 53 

This raises the further question, how the matter can be finally 
settled, whether Sylvia must leave her husband, or whether the 
marriage could or should be made valid. If there is no prospect of 
the sanatio of the marriage, then there remains nothing for Sylvia 
but to leave her husband. Upon learning of the invalidity of her 
marriage she is obliged to do so even at the risk of coming into 
conflict with civil laws. Even in case where a sanatio of the 
marriage is not entirely out of the range of possibility, it would 
be better for the wife to leave her husband if the marriage is still 
without issue and if, on the other hand, the man persistently refuses 
to consent to a Catholic education of possible offspring. For her 
better protection Sylvia might, especially if her marriage was also a 
civil one, try and find a ground for separation under the civil law. 

The most important point is whether there is any prospect for 
a sanction of the marriage. If the husband refuses assistance from 
the priest who has the case in hand, and if he absolutely refuses 
a renewal of the marriage vow before him, then any other validation 
but a sanatio in radice is impossible, and therefore excluded. But 
will a sanatio in radice be granted? Formerly such a sanatio has 
been almost impossible in view of the persistent refusal of the 
Protestant part to consent to the Catholic education of the children. 
Recently, however, in view of the difficulty of dissolving a civil 
marriage, Rome has granted it in acute cases, if the Catholic party 
used his or her utmost efforts to have the children brought up in the 
Catholic faith. An interesting case of this kind is found in Acta S. 
Sedis Vol. xxx. pp. 382, etc. It treats of an invalid union be- 
tween a Catholic woman and a non-baptized man by civil marriage. 
The latter refused to be baptized or to guarantee a Catholic educa- 
tion of the children, but gave his wife a free hand as regards the 
actual bringing up of the children. To separate this wife from 



• • • 









• • 



• « 



• • •• * 

• • • • • < 

• • • • • 






• < 



• • * 

• • • 

• • • • 



• • 



• • • 

• • • • 



*«4 









• » 
« • • 












1 



54 



THE CASUIST. 



her husband offered too many difficulties. Rome gave a dispen- 
sation for the impediment of disparitas cultus and then validated 
the marriage in radice on the condition that the wife should be 
impressed with her most rigorous duty to use her utmost efforts 
for the conversion of her husband, and to look out for the Catholic 
education of all their offspring. This case has a great similarity 
with the one now under consideration. If in Sylvia's case a disso- 
lution of the marriage offers too many difficulties, there remains 
nothing but to inquire whether Rome will consider the circum- 
stances sufficiently important to grant a sanatio in radice. 

3. The third question is, whether Sylvia can be admitted to the 
sacraments. Here we must make distinction between Communion 
and absolution. As the case must be considered a public one, Sylvia 
can not be admitted to Holy Communion until the scandal given by 
her offense has been publicly expiated and reconciliation with the 
Church has taken place. This is not done until the question of her 
invalid marriage has been settled either by separation or by valida- 
tion. Even if Sylvia should be ignorant, and meanwhile be left in 
ignorance, of the invalidity of her marriage, still she is aware of the 
grievous sinfulness which lies in a Protestant marriage ceremony for 
Catholics; she knows that that alone excludes her from the sacra- 
ments until everything has been satisfactorily settled. The same 
must of course be said of the priestly absolution, because marriage 
before a Protestant minister brings with it for the Catholic excom- 
munication, in utroque foro; however, ignorance of excommunica- 
tion may have excused the action before the conscience, and on the 
other hand the necessary reparation and public repentance, or renun- 
ciation before witnesses if necessary, may take place before the re- 
quest to Rome and the subsequent granting of a dispensation is 
accomplished. For these reasons it would not be necessary to post- 






MIXED MARRIAGE BEFORE A PROTESTANT MINISTER. 55 

pone a reconciliation with God through priestly absolution. Care 
is to be taken, that Sylvia has the sincere intention to conform to the 
requirements of the Church. The confessor must therefore insist 
upon these conditions: 1. Sylvia must faithfully promise to conform 
to the requirements of Rome, where her case is to be decided. 2. She 
must faithfully promise to do her utmost to bring about the con- 
version of her husband and the Catholic education of her children. 
3. If she is aware of the invalidity of the marriage she must in the 
meanwhile refrain from the conjugal relation, and as this would be 
difficult if she lives with her husband, she must find a pretext to go 
away from him for awhile. 4. She must, if so required by the rules 
of the diocese, publicly renounce before the pastor and witnesses her 
scandalous violation of the precepts of the Church as regards mixed 
marriages. 

If possible to obtain these points from Sylvia, then there would 
be nothing in the way of sacramental absolution, at least if the 
priest has the power to absolve in foro interno of favor haeresis, 
otherwise a request for release from the excommunication would 
have to be made to the proper authorities — unless indeed ignorance 
has excused from excommunication. If the permission of the 
authorities would take too long to obtain, and if Sylvia would 
find it too hard to carry longer her heavy burden of sin, then the 
confessor may, without special authorization, give absolution from 
excommunication and sin, with the obligation, however, that this 
absolution will also have to be settled with Rome within a month's 
time. Sylvia would have to declare her determination to perform 
any penance decided upon for her by Rome, and she must give 
her consent that recourse be taken to Rome ; she must be made to 
understand that otherwise she would fall anew under the ban of 
excommunication. The authority to give absolution from papal 



56 



THE CASUIST. 



cases "in the meantime," merely for the reason that it would be 
too hard for the penitent to wait longer, has been explicitly given 
to confessors by decree of the Holy Office of June 16, 1897, with 
approbation of the Holy Father. The most difficult point in our 
case would probably be the demand stipulated under No. 3, if Sylvia 
be aware of the invalidity of her marriage. If a temporary absence 
from home can not be arranged, and if Sylvia does not show a 
determination to employ the means necessary to make the proximate 
danger of committing sin a remote one, then there can under 
no circumstances be any absolution until everything has been properly 
put in order. 



! 



, 



< 



XL HYSTERICAL SCRUPULOUSNESS OF A NUN. 

Bertha, an innocent country maiden, receives her education in a 
convent. After passing her examinations, she takes the veil and 
is employed as teacher. After a few years the Superioress is in- 
formed that Bertha shows undue attachment for some of her young 
girl pupils, thereby causing dissatisfaction to the others. The Su- 
perioress calls Bertha's attention to the error of her action, first 
in kindness, and, when this does not bring about a reform, is obliged 
to give her a severe reprimand. Bertha complains about this to her 
confessor, concluding with the words: "If this small affair, in 
which I have thought of nothing evil, is sinful, what a great sinner 
I must be ! Then I am afraid I have left out many sins in my Con- 
fessions, and none of them may have been valid." 

The confessor takes great pains to pacify Bertha, but in vain. 
In fact, Bertha's trouble and anxiety increase after each Confes- 
sion ; she becomes more and more scrupulous and answers to the ad- 
monitions and warnings of her confessor with all kinds of counter- 
arguments. The latter at length finds himself utterly helpless, and 
sends Bertha to the extraordinary confessor, the pastor of the place. 
He also takes great trouble with her for a time, but without any 
good result. Not knowing what to do, he sends Bertha to his curate, 
a zealous man of great piety. The curate, who is besides the 
teacher of Catechism in Bertha's class, gains her full confidence. 
Whatever Bertha wishes to do or not to do, she always knows how 
to get her own way. If her Superioress refuses her something, 
she obtains permission from one of her confessors. If one refuses, 
she goes to the other. If one confessor orders her to do a certain 
thing, she gets a dispensation from another one. Before the Superi- 

57 



58 



THE CASUIST. 



oress she pleads the orders of the confessor, and before the con- 
fessor she asserts the authority of her Superioress. 

In this way she gradually frees herself from observance of the rule. 
Meditation, prayer, spiritual reading, all these things cause her irri- 
tation. Before Confession she gets convulsions, trembles in her 
whole body, and becomes speechless. Notwithstanding all this her 
class is in excellent condition. Her looks do not betray anything 
unusual, except by the restlessness of her eyes and the pallor of her 
face. She loses her appetite and becomes more and more peculiar in 
her actions. By and by she takes several of the sisters into her con- 
fidence. They take her part, and the discipline of the convent is 
seriously impaired. When sterner measures are taken with Bertha 
she threatens suicide. Scenes and fits before her Superioress and 
the confessors become more frequent and more violent. Daily, and 
sometimes several times a day, she writes to the chaplain : "Permit 
me to call on you," or "If you do not come to see me at once, I shall 
jump out of the window," etc. These threats of suicide Bertha 
uses to keep everybody in check. ■*-..' 

Finally these things become unbearable, and Bertha is sent to 
the home of her mother, a little village in the .mountains. A 
physician of repute pronounces Bertha's health in perfect condi- 
tion, but declares that her nerves are somewhat overwrought. 

Dressed in the sisters' gown, Bertha goes to Confession to the 
village chaplain and employs here her old tactics. He listens to her 
repeatedly and tries in vain to pacify her with kind words. Finally 
he deals with her with severity, especially as Bertha begins to call 
several times a day at his residence, to see him about trifling mat- 
ters and scruples. His change of manner suddenly ends her con- 
vulsions, and she becomes outwardly perfectly quiet. He has for- 
feited her confidence, and she goes no longer to him but to other 



HYSTERICAL SCRUPULOUSNESS OF A NUN. 



59 



priests in the neighborhood to Confession, and finding that she can 
not have her way she ceases going to Confession altogether. After 
that she writes menacing letters to her confessor at the convent, 
and obtains from him direction and advice. Repeatedly she visits 
a young physician to confide to him her scruples. After three 
months she returns to the convent, without having in any way 
improved. 
Questions: N 

1. Has Bertha received proper treatment? 

2. How should Bertha have been treated? 

3. How is she to be treated in statu quo? 

1. (a) Bertha's preference for some of her pupils was sinful 
(venially) because others felt hurt by these preferences (jealousy, 
envy), and because it was also detrimental for the welfare of her 
soul; namely, an obstacle to her duty of striving after perfection, 
and also dangerous because such attachments frequently lead to 
gross sensuality and to mortal sins, and in her case would have 
led there presumably, considering her character. The admonition 
and subsequent reprimand of the Superioress were therefore in per- 
fect order. * 

(b) It seems clear from the conduct of the first confessor, at all 
stages of the case, that from the beginning he was wanting in the 
necessary prudence and energy. He made a great mistake in giving 
Bertha dispensations and orders different from those of the other 
confessors and of her Superioress. He should either have foregone 
entirely the guidance of Bertha's conscience, or have acted under 
a perfect understanding with the others. Bertha's condition was 
aggravated by the yielding and weakness of her first confessor. 
Her impassioned, proud, and wilful character got the better of him. 
When at last entreaties and complaints were of no avail and they 



6o 



THE CASUIST. 



proceeded against her with energy and severity it was too late ; she 
fell into convulsions (which were undoubtedly at her command, at 
least partially), and threatened suicide. It must have greatly flat- 
tered her female pride to be able to hold four persons in check. 
Through dispensation from the rules she lost a strong support and 
the last hold for her suffering soul. 

(c) It was perfectly proper and right to send Bertha home for 
recreation, and to consult a doctor. The surroundings of home 
and the reminiscences of her youth combined with suitable medical 
treatment, and proper spiritual guidance, should have acted in a 
quieting and healing manner. But all these remedies were without 
avail, and her recovery was frustrated through the interference of 
her first confessor. Bertha may be compared to a sick person upon 
whose ailment several physicians are unable to agree; they give 
counteracting prescriptions, and thus bring the patient to the brink 
of the grave. 

2. The first confessor should have acquainted himself with the 
orders given to Bertha by her Superioress, and should have seen 
to it with all necessary severity that the obedience necessary in a 
convent was preserved. After handing her over to the spiritual 
care of another confessor he should have been careful not to in- 
terfere; and the pastor also should have given up the case entirely 
so soon as his assistant became Bertha's confessor. The three could 
act successfully together only with a previous understanding. 

Some one should have placed before Bertha the reasons men- 
tioned under No. I, to justify to her mind the procedure of her 
Superioress. Bertha, as an intelligent person, which she was by 
virtue of her training as a teacher, would have been impressed 
with their validity. It would have been well, and even necessary, 
to point out to Bertha the difference between imperfection and sin, 



HYSTERICAL SCRUPULOUSNESS OF A NUN. 



61 



and draw the distinct line between venial and mortal sin applied 
to her particular case. Her attention should have been drawn to the 
fact, that as a religious she had made the vow of obedience, and 
that even in trivial affairs she was obliged to carry out the orders 
of her Superioress, that especially when her actions were found 
faulty, was she required to recognize in the decision of her Superior- 
ess the will and voice of God, and that she was moreover under obli- 
gation of obedience to her confessor when in the confessional, by 
virtue of which he could forbid her to harbor any thoughts of her 
former life. She should have been told to consider such thoughts as 
temptations to be resisted vigorously, that true and genuine piety 
shows itself in humble submission and willing obedience, etc. Bertha 
would most likely have been protected against getting into her 
deplorable condition by a sensible explanation and application of 

these truths. 

3. As Bertha's nerves are affected by continuous brooding and 
subsequent excitements, it would be best to relieve her of as much 
teaching as possible, and let her pass most of her time with light 
work, in fresh air, under the guidance of a sensible and sociable 
sister. To keep her altogether away from her class, in which she 
seems interested, might cause much irritation, and prevent or retard 
her recovery. 

An important question remains to be answered: What is to be 
done in regard to her threats of suicide? The best way would 
be to treat them with contempt, and keep her, without her knowing 
it, under constant surveillance. Suicide seems here to have been 
an empty threat. Boastful people are usually great cowards. Bertha 
should be told : "If you think it too long before the dear Lord comes 
and calls you, you can not improve your case by running with open 
eyes into hell. If you, however, think that your threats of suicide 



62 



THE CASUIST. 



are making any impression upon me and that you can get me thus 
to let you do as you please, you are much mistaken. Either you 
obey promptly, as it becomes a sister, or you leave the convent at 
once," etc. I would mention also that for persons suffering from 
nervous irritation a careful application of the cold water cure has 
been found beneficial for restoring their shattered health. If all 
these remedies prove without avail, the only thipg left is to send 
Bertha away from the convent, as a community must not be allowed 
to suffer seriously on account of the vagaries of an individual. 



y 



XII. THE ADJUSTING OF MASS STIPENDS. 

A certain pastor, whom we may call Practicus, has many Mass 
stipends left to his church, and is obliged to a considerable ex- 
tent to have them attended to by brother priests. As the stipend 
for some of these Masses, however, does not come up to the amount 
of one dollar, this being the usual stipend in his diocese, he has 
difficulties in placing them. He helps himself in this embarrass- 
ment by using the surplus of other more liberally feed Masses to 
make up the deficiency and to bring the stipend up to the usual 
amount. Thus he finds himself enabled to have all the Masses at- 
tended to. He satisfies his conscience with the argument that he 
does not retain any of the money, nor any part thereof, but that 
he is turning over the whole of it, though the amount of some par- 
ticular stipend is in some cases divided and goes to different hands. 

The question whether such a procedure is permissible must be 
answered with "No." 

It is the law that the full stipend — certain exceptions need not 
be taken into consideration here — must be handed over to the one 
performing the obligation, and it is not permissible to use the excess 
of one stipend to make up the deficiency of another. The person 
donating the higher stipend expects the celebrant to receive the 
full amount donated, his intention evidently being the desire that 
his larger offering bring greater benefit. St. Alphonsus writes 
on this subject as follows (Lib. vi. 322) : 

Voluntas dantis est, non solum ut missa celebretur, sed ut cele- 
bretur tali stipendio; cum enim pinguem tradit stipem, ea intentione 
dot, ut uberiorem fructum ex missa celebranda percipiat; ergo qui 
tradito minori stipendio per alium celebrare facit, peccat contra jus- 

«3 



- 



64 



THE CASUIST. 



titiam, non quia defraudat fructu missae dantem eleemosynam; 
fructum enitn jam hie percipit ex sua ante habita pia disposition; 
sed quia non exsequitur dantis intentionetn, qua vult, ut ilia missa, 
unde percipit fructum, tali stipendio celebretur. 

No objection could, of course, be had if the pastor hand a num- 
ber of both under as well as overpaid Masses to one and the • 
same priest, in whose hands they would then average to the stipend 
usual in the diocese* 



XIII. THE CONFERRING OF A DISPENSATION AND 

THE SEAL OF CONFESSION. 



Cajus hands to his pastor a sealed letter received by him from 
Rome, which he is instructed to hand to any confessor he will 
choose. The pastor bids Cajus to make mention of the letter the 
first time he comes to Confession. Cajus, however, neglects to come 
to Confessioif again, though reminded of it by his pastor. Soon 
after Cajus moves into another, rather remote, parish. The pastor 
is now in a quandary what to do with the dispensation, for such was 
the contents of the letter, and is in doubt as to whether to leave 
Cajus in bona fide that everything is all right, or whether tor return 
the dispensation to him for the purpose of handing it over to his 
present confessor. Would the sigillum be against that? What is 

to be done? 

Solution : The pastor either was Cajus' confessor or he was not. 
If he was, the handing over of the dispensation took place under 
the seal of Confession; for the subject of the dispensation was a 
secret impediment to marriage, of which the pastor knew through 
the confessional, and for the setting aside of which he himself had 
asked for the dispensation for his penitent. In this case any men- 
tion of the dispensation even to a subsequent confessor of Cajus is 
excluded. If he was not the confessor of Cajus then the handing 
over of the dispensation would stand in the same immediate con- 
nection with the confessional, if Cajus had had the intention to go 
to Confession. But Cajus evidently does not intend to do so, and 
seems to be of the opinion that with the handing over of the letter 
from Rome to a priest everything necessary had been done. Cajus 
on his part, therefore, does not make it a matter of Confession, 

65 



66 



THE CASUIST. 



I 



Nevertheless, the dispensation comes under the obligation of the 
sigillum. For whoever as superior or adviser is by a penitent made 
acquainted with a fact, receives this knowledge under the seal, 
and must preserve it under the same. This also is true of the one 
who has been entrusted with the conferring of such dispensation 
"in foro Sacramenti." Our pastor accepted the commission by re- 
ceiving the letter from Rome, and therefore put himself under 
the obligation of the seal. Hence it follows that without the ex- 
plicit consent of Cajus he can not hand the dispensation over to 
the latter's present confessor, and, furthermore, that he can only 
deliver it to Cajus himself in a way which will prevent any viola- 
tion of the secret. 

What should be done under the circumstances? The pastor 
should trv and make Cajus call upon him and then give the neces- 
sary explanation. H Cajus will then go to Confession, the pastor can 
hand him the dispensation under observance of all rules concerning 
it. If Cajus will not go to Confession, then the pastor must hand the 
letter over to him with directions to give it at his next Confes- 
sion to the confessor, so as to make him acquainted with the condi- 
tions and decisions of the Holy Father. The conditional invalidity 
of the marriage should not be mentioned so as not to take away the 
bona fides, and to avert the liability of formal sin. If Cajus should 
not appear, then the pastor should keep the letter in a safe place'with 
lae directions on it : "To be burned unopened in case of my death." 
If there is absolutely no hope of ever seeing Cajus personally, the 
pastor may burn the dispensation, just as would have to be done 
with the same after it had been made use of, sub excommunicatione 
intra triduum. 



C 



XIV. COMMUTATION OF THE SIMPLE VOW OF 

CELIBACY. 

< ■ 

Alexius, a pious youth, has privately made a vow of perpetual 
celibacy. A number of deaths, which unexpectedly happened in his 
family, compel him to get married. For this he receives through 
the mediation of his bishop the necessary dispensation from Rome. 
This dispensation is given him through apostolic authority by his 
confessor in the confessional in this manner that his vow of celi- 
bacy is changed into the obligation of receiving the sacraments of 
Penance and Communion once a month, with the express stipulation 
that this dispensation is valid only for the duration of this marriage, 
and only in regard to his conjugal duties ; that outside of this, and 
in case of a termination of this marriage by the death of his wife, 
his vow remains in force, and for the contracting of a new marriage 
another dispensation would be necessary. Some questions may 
arise in regard to the meaning and effect of this commutation, 
which we shall try to solve in the following : 

i. Is Alexius bound to monthly reception of the sacraments, each 
time under pain of mortal sin, and, in the instance of Confession, even 
if he is not conscious of a voluntary sin since his last Confession ? 

2. Is it reserved to the Apostolic See to grant a dispensation from 
the duties which are substituted in place of the vow of celibacy ? 

3. How long will Alexius be obliged to receive the sacraments 

every month ? 

4. Is Alexius in his marital state, in his relation to his wife, freed 

from his vow of celibacy ? 

1. The question whether Alexius is obliged to receive the sacra- 
ments every month, each time sub gravi, we must answer to the 

67 






68 



THE CASUIST. 



effect that the reception of the sacraments as an object of a formal 
vow certainly is a materia gravis (see Marc n. 628), and that in 
our case Alexius is without any doubt bound in each separate case 
sub gravi, as a substitute for his vow. Nor is there doubt that the 
authorities in Rome have meant this obligation sub gravi, for as 
Lehmkuhl remarks (P. I. n. 480) ; The Roman courts, as a rule, 
do not grant dispensations from the vow of perpetual celibacy ex- 
cept adjuncta permagna commutations 

The duty imposed in this case, to receive the sacraments every 
month in the application to each separate instance, is not lessened by 
considering all these Confessions and Communions as one whole, 
of which a single Confession and Communion would form only a 
parvitas materiae. The words once a month, put down evidently 
ad finiendam obligationem (see Sanchez I. VIII. disp. XXXIV. 
n. 37), make each monthly duty a distinctive whole, and render 
each separate Confession and Communion a materia gravis. Even 
in the case of welding separate parts into one whole, there could 
be, as a rule, only an absolute parvitas materiae, but not a materia 
in se gravis as part of a whole be considered binding sub veniali. 

Even in case that Alexius should not be conscious of a voluntary 
sin since his last Confession, it is to be supposed from the wording 
of the rescript, as also for other reasons, that the authorities in- 
tended to bind him under any circumstances to monthly Confes- 
sion; for the finis gravis, which was the object of prescribing 
monthly Confessions, can be reached perfectly by an inclusion of sins 

previously confessed. 

2. The obligation of monthly receiving the sacraments, in com- 
mutation of the vow of celibacy, is, according to St. Alphonsus, not 
a matter reserved for the Holy Father. 

3. The question, how long will Alexius be held to the monthl) 



> 



I 






COMMUTATION OF THE SIMPLE VOW OF CELIBACY. 69 

reception of the sacraments, we would explain thus : In a recently 
published similar case, the petitioner, a woman, had to bind her- 
self for her whole lifetime to receive the sacraments every month. 
Lehmkuhl says (P. I. n. 480) of the vow of celibacy, even if made 
in secret, u Romana tribunalia non consueverunt dispensare, nisi 
adjuncta permagna commutation. . . . idque pro toto vitae 
tempore." In our case, however, the confessor was directed to 
inform Alexius that this commutation would be granted only for 
the duration of this marriage, and nothing is said of extending 
its duties for a whole lifetime. Therefore Alexius may not be 
considered bound to the monthly reception of the sacraments beyond 
the duration of his marriage. 

4. Regarding the effect of the dispensation upon his relation to 
his wife, the words of the apostolic rescript are plain: "That 
the dispensation is valid only with regard to his conjugal duties, 
but that outside of that the original vow remains in force." There- 
from arise de Ileitis et de illicitis in matrimonio for our case the 

following rules: 

(a) Quidquid est contra finem conjugii, seu quidquid adversatur 
prolis generationi, e. g. onanismus, pollutio voluntaria, etc., est 
grave peccatum contra castitatem et statum conjugalem, turn contra 
votum, quia dispensatio obtenta ad id, quod est contra debitum, 

minime se extendit. 

(6) Quidquid est juxta finem conjugii, non est peccatum, quia 
pertinet ad debitum conjugate, ad quod reddendum et petendum 
Alexius a voto castitatis rite est dispensatus. 

(c) Quidquid est praeter finem conjugii, per se, si respicias sola 
verba rescripti, in obtenta dispensatione non includitur, cum sit 
praeter debitum; sed cum, teste S. Alph. L, vi., n. 933, status 
conjugalis cohonestat copulam, etiam tactus et aspectus, si non adsit 



— 












7° 



THE CASUIST. 



periculum pollutions, non possunt esse groviter illiciti ex fine dis- 
pensations, idem et pro Alexius debet valere, aliter perpetuo in 
proximo groviter contra votum peccandi periculo versaretur. Igitur 
quidquid cpmmittit Alexius praeter finem conjugii, solet esse culpa 
venialis turn contra castitatem cum contra votum, sed finis honestus 
ipsum ab utraque culpa potest excusare. 






> 



1 



i 



XV. DEFRAUDATION BY A BANK EMPLOYEE. A 

CASE OF RESTITUTION. 

Marcus an employee in a bank, is importuned by some dishonest 
fellow-employees to join them in their defraudations. They urge 
upon him that some former misconduct of his is known to them, 
and that it would make him lose his position if these matters were 
brought to the notice of his superiors. He feels that he must do their 
bidding or lose his bread and butter, for he has neither knowledge 
nor ability for another calling. In the subsequent constant state of 
committing fraud, he omits for several years to go to Confession. 
But in order to amend for his defraudations in some way, he spends 
considerable money for alms and Mass stipends. At length he hears 
a certain sermon which moves him deeply, and induces him to go to 

Confession. 

i. What has Marcus to do on account of his defraudations? 

2. What advice should he be given for the future ? 

Ad i. Marcus is clearly bound to make restitution. The alms 
and Mass stipends with which he tried to appease his conscience 
can in no way be taken in account in this respect. The injured 
party is known, and restitution must be made to it, otherwise the 
wrong can not be righted (Lehmkuhl, I. 1019. Delama II. 713). 
The question with which Lehmkuhl deals in Sec. 103 1 has no bear- 
ing upon our case, because in his case a former confessor bade the 
penitent to use the ill-gotten money for pious purposes, while in our 
case Marcus has done this without having such commutation granted 

to him. 

Ad 2. As Marcus is evidently in an embarrassing position, he 
may be allowed to pretend assistance in the defraudations of the 

7i 






72 



THE CASUIST. 



bank provided he has the intention and means of making resti- 
tution for the amount falling to his share. He should keep this 
money separate from his private possessions, and he must even 
invest this money in a profitable way, so as to be able to make 
at some future time as full a restitution as possible to the de- 
frauded bank. The best way for him to pursue would be to open 
a special bank account for these defrauded sums and leave them in 
his will, in a legally unassailable form, to the rightful owner. 
This is advised to provide for the case of a premature or sudden de- 
mise. If circumstances alter, however, or if he should be pensioned 
or freed in some way from the compulsion exercised over him by 
his fellow-employees, then he must without doubt make restitution 
as soon as possible, and must not cause it to be delayed until after 
his death. 

Is Marcus obliged to make known the circumstances to his supe- 
riors ? 

Since his fellow-culprits are not subordinate to him, so that he is 
not responsible for their actions, he is not obliged in justice to 
take such a step. But when circumstances alter and he leaves his 
position, then he will be obliged to report the facts to the proper 
superiors. (Lehmkuhl I. 1013. Del. II. 705.) 



______ 



\ 



XVI. A CASUS OF CONFESSION. 

In a certain church the confessional is placed in a somewhat 
dark corner. On a certain Sunday morning the place is even darker 
than usual, owing to the rainy day. To the confessional there 
comes an aged woman, as the confessor learns by her voice and 
speech. She is just through confessing, when at the near altar 
the bell is rung for elevation. The confessor tells the woman to 
pause a little while, until after the elevation, and the woman answers, 
"Yes, father." The confessor makes the sign of the cross and 
gathers his thoughts for admonition. After the elevation he turns 
again to the woman, admonishes and consoles her, etc., gives her 
her penance and pronounces absolution, ending with his customary 
"Blessed be the Lord" to the penitent, from whom, to his great 
surprise, comes the word Amen in a man's deep voice. The con- 
fessor, quickly looking up, perceives a young man leave the con- 
fessional and disappear. How did this young man get there in 
place of the aged woman ? There is only one explanation. The aged 
woman must have misunderstood her confessor when he suggested 
to wait until after the elevation. When the confessor then made 
the sign of the cross, she probably understood this to be the absolu- 
tion. Softly she left the place, and just as softly it was taken 
by the young man, who received the absolution of the priest probably 
in some astonishment. He may have been agreeably surprised by the 
imagined fact that this confessor did not even require the telling of 

his sins. 

This would raise now the following questions: 1. Has the con- 
fessor rendered himself guilty of laesio sigilli, by addressing his 
admonition, referring to sins of the aged woman, to the young man? 

73 



74 



THE CASUIST. 



2. Has the woman been absolved ? 3. Has the young man been ab- 
solved? m 

1. The confessor may safely be exonerated from the offense of 
laesio sigilli. It is probable that the young man was not able to get 
any sense out of the admonition addressed to him by the confessor. 
Nor is it likely that he connected the admonition with the person 
who preceded him in the confessional. It may therefore be assumed 
that the confessor has not revealed anything ; but even if this be the 
case the confessor would have to be declared not guilty ob errorem 
invincibilem. He could not possibly presume that some one else had 
taken the place of the woman. 

2. The question, Has the woman been absolved ? is to be answered 
in the affirmative. Though the words "Ego te absolvo" were spoken 
to the young man, the "te" was nevertheless meant for the woman, 
who, we may assume, was still morally present during absolution. 
Several at least of our moralists have so held in similar cases. In 
our instance it is moreover very likely that the aged woman was 
still in church when absolution was pronounced for her. It is there- 
fore, and for these reasons, at least probable that she was absolved. 

The third question, however, must be answered in the negative. 
The young man has not been absolved. He did not conform to the 
essentials of the sacrament, he did not confess his sins, nor had the 
confessor any intention of giving him absolution. 

Suppose, however, the young man thought bona fide he had been 
absolved, and with this thought, although possibly in the state of 
mortal sin, went to receive Holy Communion? In this case it is 
to be held that through Holy Communion his mortal sins were for- 
given per accidens if he approached the Holy Sacrament bene 
attritus. 



1 



XVII. REQUIEM MASSES WITH THE BLESSED SAC- 
RAMENT EXPOSED. 

It has been a certain fact heretofore that with the Blessed Sacra- 
ment exposed ex causa privata Requiem Masses have been permis- 
sible at the altars of a church with the exception of the altar of ex- 
position. Stipend Masses, Rorate Masses, Sodality Masses, coram 
Sanctissimo, are classed amongst the category of expositiones ex 
causa privata. Recent theological opinions have, however, inter- 
preted the decree of the R. C, of June 13, 1900, in the sense that 
Requiem Masses even at side altars are not permissible if the Blessed 
Sacrament is exposed in a church. To this interpretation the fol- 
lowing objection has been raised. The decree has reference to a cer- 
tain oratorium publicum, a public chapel, which has two altars, situ- 
ated in niches opposite each other. The priest standing at the altar 
on which the Sanctissimum is not exposed, turns his back to the 
ostensorium, a thing in itself objectionable. Something forbidden 
for a chapel, furthermore, may not be necessarily forbidden in a 
church. A decree of the S. R. C. of July 9, 1895, seems also con- 
trary to the above interpretation, as it directs that whenever the 
Forty Hours' Devotion is kept on All Souls' Day, all masses with 
the exception of a single one are to be said pro defunctis, but in 
purple vestments. It may therefore be concluded that the decision 
quoted above has reference to one certain instance and that it does 
not interfere with already existing decisions. 

This last argument is a weighty one. It is a frequent error to 
generalize decisions rendered pro casu. It is possible that a further 
inquiry would result in a general decision, conforming to the one 
pro casu, but as long as this has not been decided, the decision 

75 



7 6 



THE CASUIST. 



pro casu can not be stated as a general law. Take, for instance, 
the jejunium naturale. Because in Lourdes a fast of four hours has 
been prescribed before the midnight Mass, many have held this to 
apply also to the Christmas Mass, but such is not the case. 

In large churches, where the case cited at the beginning of this 
article occurs not infrequently, it will therefore be safe to continue 
the previous usage, until the R. C. sees fit to pronounce universally 
on this subject 



r*> 



XVIIL MEANS BY WHICH TO INDUCE THOSE SERI- 
OUSLY SICK TO RECEIVE THE SACRAMENTS. 

Especially in parts of the country where Catholics are as yet 
sparsely settled, it often happens that by contact with irreligious 
people Catholics grow cold in their faith and neglect its practices. 
If they fall into sickness, such people are not likely to care much 
for the consolations of the church, and the priest usually meets with 
a cold reception, if he is called in at all. But even if received in a 
friendly way, he is likely to meet with a polite refusal as soon as 
he mentions Confession, etc. What can be done under such condi- 
tions to induce Catholics, weak and indifferent in faith, to the re- 
ception of the sacraments ? 

Above all, the worthy, virtuous priest will seek assistance from 
heaven, and will offer up his pious prayers for divine guidance 
and help for a task that seems beyond human power. Then he 
will proceed in confidence, straining at the same time all his faculties 
of mind to discover the means best suited to the needs of each 
particular instance. A safe key to the human heart is the genuine 
priestly love. Diplomacy may often be resorted to with good result. 
The former general of the Society of Jesus, P. Beckx, accomplished 
the conversion of an obstinate murderer, condemned to death, by first 
playing chess with the man and thus gradually gaining his friendship 
and confidence. Sick people in general greatly appreciate expressions 
of courtesy and sympathy ; the priest may with advantage facilitate 
his task by inquiring of children about their sick father and sending 
him sympathy and good wishes, also paying a preliminary friendly 
call without mentioning anything about religion, thus gradually 
getting the patient at ease with the thought of receiving the sacra- 

77 



7 8 



THE CASUIST. 



ments. The priest who goes about his task in this manner will have 
the gratification of greatly lessening in his parish the number of those 
who die without making their peace with God. A thing of the 
greatest importance in this connection is that frequent exhortations 
be made from the pulpit to the people to look out not only for the 
body, but also for the soul of their sick at home, to send for the 
priest before the sickness gains too much headway, reminding them 
of the difference it will make for the peace of those left behind, 
if they can think of their deceased relatives as having died consoled 
and fortified by the reception of the sacraments. 



? 



XIX. THE MARRIAGE TIE. 

Titus, without the least scruple of conscience, has changed his 
religion a number of times, for the sake of worldly gain. At pres- 
ent, however, he is back in the Catholic Church, and to all appear- 
ances, for good. It happens now that he ruins a poor Catholic girl, 
and she becomes a mother. She insists on his marrying her. He 
agrees, but on one condition only, namely, that they both go over 
to Calvinism first, and as members of the church of Calvin, get 
married. For, says Titus, in case this marriage turns out a failure, 
and we should wish to have it dissolved, we can get a divorce very 
easily in the Calvinistic churchy And so it happens. They both 
become Calvinists, and as members of the Calvinistic church are 
married by the preacher. But the marriage turns out badly. Titus 
abuses the wife, until at last she is compelled to seek a divorce in 
the civil courts. The divorce is granted and the woman leaves Titus 

for good. 

She remains single for some time, and then falls in love with a 
Catholic man, whom she finally marries before a civil magistrate. 
Some time after this she goes to the priest and begs to be received 
back into the Catholic Church, and to have this, her second marriage, 
made or declared valid by the Church. 

The question is, What is to be done under the circumstances? 
Answer.— In order that Lucy's second marriage, i. e., with the 
Catholic man, be a possibly valid marriage at all, before God and 
the Church, it must be proven that Lucy's first marriage, i. e., Cal- 
vinistic marriage with Titus, was invalid from its very inception. For 
if the first marriage was at any time valid and consummated, then 
it can not be dissolved, quoad vinculum, by any power on earth. 

79 



/ 



8o 



THE CASUIST. 



However, there are good grounds for suspecting that L\icy's first 
marriage, that is, her Calvinistic marriage with Titus, was invalid 
from the very start. The view non-Catholics take of marriage, 
namely, that for specified reasons it may be dissolved, quoad vincu- 
lum, does not necessarily render the marriage of non-Catholics in- 
valid. For their prime purpose is to contract a real and true mar- 
riage. Their belief that marriage is dissoluble is only a concomitant 
error. But when the main purpose of the contracting parties is to 
contract a dissoluble marriage, then the marriage rights themselves, 
which constitute the subject matter of the marriage contract, and 
which are mutually transferred in marriage, are materially and sub- 
stantially vitiated and destroyed. There is a real and substantial 
defect present in the contract, a so-called conditio turpis, quae redun- 
dat in substantia™, Matrimonii (Lehmkuhl, II., n. 688). 

According to the Canon Law, the conditiones turpes matrimonii 
substantiae contrariae, in pactum deductae, render the marriage 
null and void. In like manner, the Instruction issued under Gregory 
XVI. to the bishops of Hungary, April 30, 1841, on mixed marriages, 
holds indeed for the validity, generally, of such marriages, notwith- 
standing the false opinion of Protestants on the dissolubility of mar- 
riage ; still this same Instruction calls attention to the fact that the 
Congr. of the Holy Office, October 2, 1680, to the question : "An sit 
validum Matrimonium, contractum inter Catholicam et schismaticum 
cum intentione foedandi vel solvendi matrimonium, ,, gave the fol- 
lowing answer: "Si ista sint deducta in pactum, seu cum ista con- 
ditione sunt contracta matrimonia, sunt nulla : sin aliter, sunt valida" 
(Denziger, Enchiridion, n. 1485). 

In the case before us there is no question of a mixed marriage. 
But the grounds for its eventual invalidity are not to be sought for 
in its character of mixed marriage, as such, but in the false view of 



C 



THE MARRIAGE TIE. 



81 



non-Catholics concerning the object and conditions of the marriage 
consent, which false view of Protestants may easily enter into and 
affect substantially the object and conditions of the marriage consent. 
This was true in the case of Titus. He stated expressly that he 
wished to contract a dissoluble marriage. - It was for this expresSj 
purpose that he joined the Calvinistic church— that his marriage 
might be more easily dissolved in case he should, in the future, de- 
sire its annulment. There is no room, therefore, to doubt the in- 
validity of the marriage between Titus and Lucy. And consequently 
there is no room for questioning Lucy's ability to contract a valid 
marriage with the Catholic man and to be received back into the 
Church. As marriages of baptized persons before a civil magistrate, 
though mortally sinful, are nevertheless valid in most places, where 
the Tridentine Decree, "Tametsi," has not been published, this 
second marriage of Lucy to a Catholic, before a civil magistrate, 
was a true marriage before God and conscience, although mortally 
sinful, provided only Lucy and the Catholic man intended, at the 
time, to enter into a true and valid marriage contract, binding 
before God and in conscience. But the whole case should be brought 
before the Ordinary of the Diocese, who will name the conditions 
on which Lucy will be reconciled with the Church. 

But if Lucy's marriage with the Catholic man before the magis- 
trate was not looked upon by them as a real marriage, but only as 
a civil ceremony, prescribed by law, as happens in some countries, 
then, of course, Lucy's marriage to the Catholic, before the magis- 
trate, was no marriage. The pastor should not lend his countenance 
to it, nor bless it, before he has laid the whole matter before the 
bishop. It is the bishop's office to determine the invalidity of Lucy's 
first marriage, with Titus, because that marriage had all the ap- 
pearances of a valid contract "in foro externo" and before the 






82 



THE CASUIST. 



public. Only after competent Church authority shall have declared 
it invalid can Lucy proceed to a second marriage. It will be neces- 
sary, however, to produce satisfactory proof of Titus' intention, 
when he married Lucy, of forming a dissoluble union only. 



"V 



XX. FORBIDDEN BOOKS. 

Julius, who is a good Catholic, noticed some time back that a 
young woman, a near relative of his, who cares little about 7 religion 
or the Church, is passionately fond of the Memoirs of Casanova, 
which she actually devours herself, and lends to others to read. In 
order to prevent the spiritual harm done by such reading, Julius 
borrows the Memoirs from the young woman and hides them 
where no one can get at them. Some time after this he hears, acci- 
dentally, that no one is allowed even to keep in his possession books 
forbidden by the Index. Thereupon he calls upon his pastor and 
consults him as to what he ought to do with these Memoirs, of 
which there are several volumes. 

Answer. — Casanova's Memoirs are on the Index, decree of July 28, 

1834. 

Therefore, 1. Julius dare not keep these Memoirs in his posses- 
sion, no matter how praiseworthy his purpose, without the permis- 
sion of the Holy See. St. Alphonsus says: 

"Non excusatur is, qui librum vel in aliena domo, vel alieno nom- 
ine, vel animo non legendi, habet" (L. vii., n. 297). 

Dr. Hollweck, in his work on the Index, comments on these words 
as follows: 

"Concerning the having in one's possession books forbidden by 
the Index, we must emphasize the fact that it makes no differ- 
ence whether you keep the book in your own possession or give it 
to others to keep for you; whether the book belongs to you or to 
somebody else ; whether you intend to read it or no. Moreover, you 
must have had the book in your possession for a considerable length 
of time before you become guilty of a mortal sin, and incur the cen- 

83 



: 



/ 



84 



THE CASUIST. 



sure attached to the transgression of the law. St. Alphonsus calls 
one or two days parvitas temporis (1. c. n. 295). The Popes have 
usually named eight days as the limit of time for giving up bad 
books. With this fact in mind, it may be safely said that one must 
keep in one's possession a forbidden book over one week in order 
to be adjudged guilty of a serious infraction of the law and to have 
incurred the censure attached to it. One may keep the forbidden 
book in one's possession, even longer than one week, if one does 
so in order to await a more favorable opportunity of turning the 
book over to the bishop or vicar-general, or to get the necessary 
permission to keep it. But one should not keep the book longer 
than one month, for a month is ample time to get the necessary 
faculties from the Holy See." Thus far Dr. Hollweck. 

2. Julius may not burn the book, or otherwise destroy it, because 

it is not his property. 

3. Although the borrower or depositary of another's property is 
bound to restore the same to the owner upon his demand, or at the 
stipulated time, still in the case of Julius there is the exception to 
be made, of which St. Thomas writes : "Quando res restituenda ap- 
paret esse graviter nociva ei cui restitutio facienda est, vel alter., non 
debet ei tunc restitui, nee tamen debet ille, qui retinet sic rem 
alienam, sibi appropriare sed vel reservare, ut congruo tempore 
restituat, vel etiam alii tradere tutius conservandam" (2, 2, q. 62, 

ad. 1). 

St Alphonsus, Lessius, Lugo, and others, teach the same. 

Julius would sin against charity, or the love he owes his neighbor, 

if without mor?ado, he were to return the forbidden book to the 

owner, foreseeing the harm that would come to her or to others from 

its perusal. We say, "without more ado," because if Julius can not 

refuse to return the forbidden book to its owner, without serious 



I, 






FORBIDDEN BOOKS. 



85 



inconvenience to himself, "sine gravi incommodo" he may return 
the book at once (Cf. Marc, n. 1020). 

4. Since, therefore, Julius may not return the book to its rightful 
owner, simply upon her demand, and since he may not keep it any 
longer in his possession without the permission of the Church au- 
thorities, he should either get the permission to retain the book in 
his own possession or he should give it to some third person for 
safe keeping who has the faculty to retain forbidden books. 

Perhaps, in the course of time, the young woman may be pre- 
vailed upon to waive her right to the book, and no longer to con- 
sider it her own property. 



) 






XXL A PROMISE A BINDING CONTRACT ? 

Claudina promises her husband, on the day of their marriage, that 
she will make over to him the sum of three thousand dollars, as 
soon as he shall have served out the term of his enlistment in the 
army. In the meanwhile, however, her husband becomes addicted 
to drink and before the term of his enlistment has expired is a 
confirmed drunkard. Claudina refuses to keep her promise. She 
proposes to keep the money herself and use it for her children. Her 
husband, however, insists that she keep her promise to him and give 
him the money. What is Claudina to do under these circumstances ? 

Solution. — Claudina's promise has all the necessary qualities of a 
binding contract, and it imposes on her, therefore, the obligation of 
keeping it, in the event of the husband complying with the condi- 
tions of the promise. As the case stands, it is not clear what use 
Claudina's husband is to make of the money once it comes into his 
possession. If Claudina intended that her husband should be per- 
fectly free in the use of the money for whatever purpose he might 
choose, -and this seems to hav^been the case, then it is certain that 
Claudina would never have made the promise had she foreseen the 
circumstance of her husband becoming a drunkard. The fact that 
she postponed the fulfilment of her promise until her husband should 
have completed the term of his enlistment seems to prove that she 
made this reservation expressly. Since she intended, therefore, 
to bind herself by her promise only on the condition that her hus- 
band should remain a good, decent man, she is, under the circum- 
stances, absolved from all further obligation toward her husband in 
the matter. For a so-called "contractus gratuitus unilateralis" is 
considered void when the circumstances of the person or thing have 

86 



A PROMISE A BINDING CONTRACT? 



87 






so changed that it may be taken for granted that from the start the 
obligation imposed by the contract was not to be extended to this 
case. The wife may rest perfectly easy in her conscience, and all 
the more so, since she intends to use the money for her children, 
whereas, the father by his drinking is prevented from taking the 

necessary care of his family. 

But should not the wife, in the interest of domestic peace, give 
way to her husband and let him have the money? No ; because it is 
not she, but the husband who is disturbing the peace of the family, 
and if she gives him the money promised she only lends him new 
means for indulging his habit of drink and further destroying the 

peace of the home. 

Only in case the conveying of the money to the husband did not 
give him the free disposition of it, neither now nor later, could the 
wife be advised to make it over to him. But in that case the hus- 
band would have no further interest in the matter. The wife may if 
she pleases, renew her promise to her husband, but make its fulfil- 
ment depend on his thorough and sincere reform. 



*\ 






i 



XXII. FOR WHAT PERSONS MAY THE HOLY SACRI- 
FICE OF THE MASS BE OFFERED? 

Titius, a parish priest, receives from a pious Catholic lady three 
Mass stipends, with the request that he say three Masses for the 
following three intentions : One for her brother, who died without 
baptism, although he was a man of upright life, who feared God and 
departed from evil; one for an Episcopalian friend, who died in 
good faith and to all appearances in the grace of God ; and one for 
the soul of her late husband, who was an "excommunicatus vitan- 
dus," who at the moment of death gave unmistakable signs of 
repentance, although on account of the suddenness of his taking off, 
there was no time to call a priest. 

Titius accepted the stipends and said three Requiem Masses, in- 
serting the names of the dead persons in the orations of the Mass. 
When taken to task for this by another priest, Titius replied that 
the sacrifice of the Mass may be offered up for all those for whom 
the sacrifice of the Cross was offered up. As Christ died for all 
men, therefore Mass may be said for all men. 

1. For whom may the Holy Sacrifice of the Mass be offered? 

2. Did Titius do right in this matter, and what is to be said about 
the reason he gave for saying Mass for everybody? 

3. Ought Titius to return the stipends? 

1. It is evident from the Council of Trent (s. XXII) that Mass 
may be said for all the living who are baptized and living in com- 
munion with the Church, as well as for the souls in purgatory. 
There is no difficulty on that point. The difficulty arises when 
there is question of saying Mass for persons excommunicated, or 
for heretics and schismatics, or for the unbaptized. May a priest 
say Mass for any of these latter, whether living or dead ? 

88 






, 



FOR WHOM MAY SACRIFICE OF MASS BE OFFERED? 89 

Considered in itself, and apart from the legislation of the Church, 
there is no reason why Mass may not be said for any and all per- 
sons, since the sacrifice of the Cross was offered for all mankind. 
But inasmuch as the Mass is an act of public worship, its celebration 
comes under the laws and discipline of the Church. Hence in regard 
to saying Mass, the general rule is laid down that Mass may be 
said for any and all persons, except those for whom the Church 
by an express and incontrovertible law (for this is materia odiosa) 

forbids it to be said. 

2. The act by which a priest offers up Mass for any particular 
person may be a public act, or it may be semi-public, or it may be 
an altogether private act ; that is to say, the act by which the priest 
applies the special fruit of the Mass, or its ministerial fruit, as some 
theologians call it, to some private individual may be a public, a 
semi-public, or a private act. It is a public act when the priest an- 
nounces to the faithful that Mass will be said for such or such a 
person, or when he inserts the name of the person in the orations 
of the Mass. It is a semi-public act when the priest accepts the 
stipend and promises to say Mass for the person named, although he 
says nothing to the faithful about it. The act is a private act if the 
priest's intention in offering the Mass be known only to God. 

Now with these observations in mind, let us discuss the question 
of offering Mass for the living. 

1. The Church forbids the public offering of Mass for an excom- 
municatus vitandus (Ita omnes. Bened. XIV). 

2. The Church allows Mass to be said for a heretic or a schis- 
matic provided the Mass be said for the express purpose of obtain- 
ing for the heretic or the schismatic the grace of conversion to the 
true faith (dec. Holy Off., April 19, 1837). 

3. The Church allows Mass to be said for an unbaptized person, 






. 






9° 



THE CASUIST. 



provided the saying of it gives no scandal to the faithful, and that 
nothing special is added in the Mass, and provided there be noth- 
ing bad or false or superstitious in the intention of the person of- 
fering the stipend, if such person be unbaptized (dec. July 21, 1865). 
Thus Mass may be said for an unbaptized sick person that he be 
restored to health, or for an unbaptized person condemned to death, 
that he recover his liberty, or escape the death penalty (Holy Off., 
March 11, 1848). 

Regarding Mass for the dead the Holy See was asked the follow- 
ing questions : 

1. Is it lawful to say Mass for those who die in open heresy, 
especially if it be known that you say Mass for them? 

2. Is it lawful to say Mass for such persons if no one knows it 
except the priest and the person offering the stipend? 

I. Both of these questions the Holy See answered in the negative. 
In neither case is it allowed to say Mass. From which we conclude 
that the Church makes no distinction between the public and the 
semi-public saying of Mass, but forbids both alike. 

II. It is not lawful, under any circumstances, to say Mass for 
those who have died without baptism, "pro defunctis, qui in sua 
infidelitate ab hac vita decedunt ,, (dec. Sept. 12, 1845). 

III. It is not lawful to offer prayer in the name of the Church 
for an excommunicated person, if such person died while under the 
ban of excommunication, unless first absolved, no matter how con- 
trite the person may have been at the hour of death, and even though 
before God he may have been absolved from the excommunication 
(c. 28 de sent, excomm.). The absolution from the excommunica- 
tion must be first pronounced over their corpse, before Mass may 
be said for their soul. 

IV. Titius did wrong in accepting the stipends, and saying Mass 



FOR WHOM MAY SACRIFICE OF MASS BE OFFERED? 91 

for the intention of the giver, and above all he did wrong in men- 
tioning the names of the dead person in the orations (of_ the 

Mass. 

V. Titius is not bound to return the stipends he received for the 
Masses, because he did not sin against commutative justice. He 
did all that he promised to do, when he took the stipends. He 
sinned against the laws of the Church, by saying the Masses, but 
he did not sin against the virtue of commutative justice. 



^^— ^_^__ 






XXIII. THE WORDS OF CONSECRATION. 

Titius, a priest, somewhat scrupulous by nature, repeats the words 
of consecration very often in the Mass.* Once he repeated the words 
of consecration over the chalice, because he had said "Hoc est enim 
calix sanguinis mei" instead of "Hie est." Another time he omitted 
the words "mysterium fidei," and therefore repeated the whole form. 
Another time he repeated the form of consecration over the chalice 
because in his haste to get through the Mass he said "sanguis" for 
"sanguinis." And again another time he paused in the middle of 
the form of consecration for the chalice until he made an act of 
contrition, because he feared that he might be in mortal sin. Titius's 
confessor is at a loss as to what judgment he shall pass on Titius. 

Titius did wrong in all four instances, where he repeated the words 
of consecration, and he merits reproof. 

i. In the first instance Titius should not have repeated the words 
of consecration over the chalice in order to correct a grammatical 
mistake. "Hoc est" has identically the same meaning as the rubri- 
cal form *Hic est." It is less correct Latinity, but it is synony- 
mous with "Hie est." "Hoc est enim calix" is not a substantial 
change of the form of consecration, and does not invalidate the 

form. 

2. The omission of the words "mysterium fidei" does not invalidate 
the form. If all the words beginning with "novi et aeterni" and 
continuing to the end "peccatorum" were omitted, the form would 
have to be repeated, because, owing to the opinion of weighty theo- 
logians, the form would probably be invalid. But the same can 
not be said of the omission of one or two words, and some theo- 
logians think that the repetition of the words of consecration would 

♦See the interesting chapter on this mania in Sanford's Pastoral Medicine. 

92 



THE WORDS OF CONSECRATION. 



93 



^ 



be illicit, when only one or two words, like "mysterium fidei" have 
been omitted (cf. Lehmk., II. 129; Genicot, II. no). 

3. Pronouncing "sanguis" for sanguinis" does not give any new 
sense to the words of consecration. It is evident that it is only 
a slip of the tongue, a slight accidental error of pronunciation, and 
that Titius intended just what the correct grammatical form says. 

4. Titius did wrong by repeating the whole form because he had 
interrupted it momentarily in order to make an act of contrition. 
Slight interruptions which scrupulous priests make in pronouncing 
the words of consecration do not constitute a moral interruption. 

We would add that in Titius's case it is very probable that the 
consecration of the chalice was already accomplished when he inter- 
rupted the form to make an act of contrition (cf. Genicot n. 176, 
II). 



XXIV. CONFESSION BY TELEPHONE? 

Case.— A certain priest, by name Paul, had brought into play all 
manner of artifice that might secure him an entrance into the house 
of a Freemason, whose wife, Mary, lay grievously ill, but all in vain. 
He was on the point of despairing when he discovered that the house 
was equipped with a telephone. Through the assistance of a servant 
in the house, Paul was enabled to obtain communication with the 
sick woman, and, having heard her confession over the "phone," gave 
her conditional absolution. 

Now the question arises : Did Paul act prudently ? Our answer 
is in the negative, and for the reasons we will now set forth. 

Solution. — Before all else, the penitent must be truly present to 
the confessor, for an absent person can never be absolved. This 
we know, in the first place, from the condemnation made by Pope 
Clement VIII of the following proposition: "Licet per litteras 
seu internuntium confessario absenti peccata sacramentaliter con- 
fiteri et ab eodem absente absolutionem obtinere." And Pope Paul 
V, approving of Clement's action, declared the condemnation to 
extend to both members of the proposition, even separately con- 
sidered. Secondly, we know this from the Council of Trent, where, 
speaking of the nature of the Sacrament of Penance, it is said: 
"Christum ita instituisse hoc sacramentum, ut poenitentes voluerit 
anto hoc tribunal tamquam reos sisti, et per sacerdotum sententiam 
a peccatis liberari." These words call for no more and no less than 
the presence of a criminal before a judge. 

The penitent, then, must be present to the confessor. But how? 
Morally or physically? Theologians are our guides in this matter, 

94 



CONFESSION BY TELEPHONE? 



95 



and in this they are sure guides, seeing that they all agree in de- 
manding a moral presence. What, then, we may inquire, is moral 
presence ? These same theologians tell us, definitely or satisfactorily 
enough we do not say, that men are morally present to one another 
when they can speak with the ordinary voice (voce con mini), 
though pitched in a higher key. Again we find some who extend 
this presence to twenty paces. The limit, however, is reached by 
those theologians who hold that the required moral presence is had 
if the confessor sees or by any one sense perceives the penitent, 
and this in the natural or human way. We now conclude that the 
presence required for valid absolution is had only when the con- 
fessor can perceive the penitent at least by one sense, and in the 
natural way, i. e., aided only by nature, e. g., the sun, air, etc. 

Indefinite as this notion of moral presence may be, we will now 
apply it to the case in hand. At the very outset, we can say that 
if this presence is had, it is only by means of the telephone. Through 
no other medium can Mary, lying ill in her home, be said to be 
present, either physically or morally, to Paul, who is now in the 
telephone station. Our question, then, concerns itself only with this 
circumstance of communication. Assuredly, this communication 
does not take away the distance, nor does it render those present to 
each other who are, de facto, at a distance, for at most it is but an 
efficacious medium of communication between absent persons. This 
is no new doctrine, for if we ask the general opinion of prudent men 
on this matter we will receive the same verdict — that the telephone 
does not create presence, but is only a means of communicating with 
an absent person. From the mere fact, then, of two persons being 
in communication it does not follow that they are present to each 
other, as can easily be seen in the case of communication had 
through a messenger, or again, by means of a letter. 



9 6 



THE CASUIST. 



For fear this notion of moral presence may be, as yet, too in- 
definite or abstract, we will now take a concrete example of it — to be 
had, we think, in the case of hearing Mass. To fulfil our obliga- 
tion of hearing Mass we must at least be morally present, so that we 
would be reckoned among the number of those assisting at the offer- 
ing of the Holy Sacrifice. Could this be had through the telephone ? 
Is it likely that any one would admit that a person could hear Mass 
over the "phone" ? Assuredly not. And why? Because the tele- 
phone does not supply moral presence. Still St. Alphonsus says: 
"Praesentia pro absolutione majorem propinquitatem requirit quam 
pro audienda missa." With this saying before us we can reasonably 
hold that the moral presence, required by the theologians, demands, 
if we may be permitted the expression, a local nearness, and we 
likewise contend that one would change the meaning of the words 
in affirming that Paul and Mary were truly present to each 
other. 

Our next endeavor will be to discover the mind of Jesus Christ 
anent this matter — the presence required for a valid absolution. Our 
Lord and Saviour Jesus Christ instituted seven Means of Grace, 
called sacraments. These seven sacraments, we might do well to 
note here, are separate entities instituted, each and every one of 
them, for a different purpose. A sacrament is a sign — an efficacious 
sign of grace. A sign is made up of two elements — the thing to be 
signified or symbolized, i. e., the idea of Christ, and the symbol or 
rite, which in turn is composed of two elements — one real or .sen- 
sible, called matter, and the other verbal, called the form. Of the 
seven sacraments two were instituted in specie, i. e., Christ not ony 
gave the Church the idea to be symbolized, but also the matter and 
form which constitute the symbol. The other five Christ instituted 
in genere, i. e., He gave the Church the idea to be symbolized, and 



v > 



CONFESSION BY TELEPHONE? 



97 






left her free to choose apt instruments to signify the idea. The Sac- 
rament of Penance was instituted in genere. 

The Council of Trent tells us that the Church can not change, in 
fact, can do nothing regarding the substance of the sacraments, i. e., 
the idea Christ had in instituting them. If, then, our notion of 
moral presence is included in the idea of Christ, which is the sub- 
stance of the sacrament, the Church can not change it one jot or 
tittle. If, on the other hand, it is contained in the symbol, the Church 
can, at her discretion and according to the needs of the time, change 
it. But, de facto, she has, up to this, in no way modified it. What 
we must do, then, is to discover the mind of Christ — His idea in 
this matter. 

We find nothing concerning it in the teaching of Christ, and, 
moreover, the Church, in her teaching, has not a word. We must 
go to the theologians and the practice of the Church for a solution. 
All theologians teach that Christ instituted penance for the remis- 
sion of all sins committed after baptism — that this was His idea. 
But what we are especially concerned about is the symbol or rite re- 
garding the determination of which the Church, we admit, was al- 
lowed a certain amount of latitude — an apt symbol, one that would 
clearly represent Christ's idea, made up of two elements, which the- 
ologians for convenience's sake have analogically called matter and 
form. As we have already stated, each of the sacraments has a 
symbol or rite in which these two elements may be distinguished. 
That same connection must be had between the matter and form of 
each symbol, all will admit, and that this connection may be different 
for different sacraments, is demanded by the fact that the sacraments, 
notwithstanding a certain more or less artificial uniformity, belong to 
disparate categories of things. What connection, then, does the 
Sacrament of Penance require between its matter and form ? What 






9 8 



THE CASUIST. 



presence is demanded to exist between the penitent supplying the 
matter and the confessor pronouncing the words of the form? In 
a word, according to the mind or idea of our Saviour, what presence 
must exist between Mary, confessing her sins, and Paul, giving her 
absolution? For an answer to this question we must betake our- 
selves to the theologians and the practice of the Church. 

The theologians have always taught that the penitent should pre- 
sent himself before the confessor as does the criminal before the 
judge. They have always demanded, for the validity of the ab- 
solution, that the penitent be present to the confessor so that the 
words of the form, pronounced in the ordinary way, should fall 
upon the penitent in like manner. This the Church also has always 
demanded, and as we see from her practice, has always obtained. 
This, then, is the idea of Christ which demands this presence for 
the validity of the absolution. But this presence is certainly not 
had through the telephone, as all theologians admit, and no necessity, 
no matter how great, can supply it, though some theologians, by a 
queer process of reasoning, come to this conclusion. 

The case of these latter theologians would not be altogether hope- 
less, but would have some probability in its favor, if the human 
voice was heard through the telephone, for, then, there would be a 
slight probability of the telephone creating moral presence. In this 
matter we must have recourse to science. What does she say ? Her 
verdict is that we do not hear the human voice, but only a physical 
reproduction, or rather, a physical effect of the voice. After a 
long struggle we may get her to admit that perhaps the human 
voice is heard, but more than this is required to produce a slight 
probability of moral presence, for a slight probability is a true 
probability, and, consequently, demands one good, solid motive. A 
slight probability is so called not because it has for its foundation 



CONFESSION BY TELEPHONE' 



< 



99 



a slight motive, but because it is of a lower grade of a true proba- 
bility. We hold, then, that a slight probability is not had in this 
case, and still a slight probability is necessary, even in a case of ex- 
treme necessity, for the licit administration of the sacraments. 

Because of these reasons we conclude that the presence, necessary 
for the validity of the absolution, is not obtained through the means 
of communication called the telephone, and consequently that Paul, 
in this case, acted imprudently. 



XXV. MAY MIXED MARRIAGE EVER BE 

ADVISED ? 

Mr. B., a wealthy Protestant merchant, married a Catholic woman, 
promising that the children should be reared as Catholics. After a 
happy married life the wife dies, leaving three children under age. 
B.'s mother was still living, but he did not care to place his children 
in her care, having promised their Catholic education. Under these 
circumstances he sought again the hand of a Catholic woman. The 
latter asked advice of her confessor, and he advised her to accept 
the offer. 

Quaeritur i. Is it never advisable to advise the entering of a 
mixed marriage? 2. Did the confessor act against the Church in 
casuf 3. What should the priest advise Mr. B. if he should ask 
for advice in the matter? 

Ad 1. The dreadful havoc wrought by mixed marriages, for the 
individual and for the Church, is sufficiently known. The loss of 
souls, the inroads made by indifferentism, show as plain as daylight 
how well-founded the plaints of bishops and clergy from all parts 
of the Church are, and call to mind the touching words of Pius VIII, 
with which he accompanied the delegating of dispensation to the 
bishops of Prussia : Post haec Sanctitas Sua ad cruciUxi pedes pro- 
voluta protestatur, se ad tolerantiam praedictam ea dumtaxat de 
causa adduci seu verius pertrahi, ne graviora religioni catholicae 
incommoda obveniant. For this reason it is the priests' sacred duty 
to refer in their sermons frequently to the evil consequences of 
mixed marriages, and to raise a warning protest already in the 
catechetical instructions at school. Yet, notwithstanding, now and 
again permission will be granted for a mixed marriage, the Church 
giving dispensation for weighty reasons, the necessary conditions 

100 






MAY MIXED MARRIAGE EVER BE ADVISED? 



roi 



r 

being observed. The practice of the Church proves this, and Ben- 
edict XIV forbids to consider as sinful such a marriage, contracted 
after valid dispensation. That, however, which is permissible under 
certain conditions, may under special circumstances be even good 
and commendable and therefore advisable. This would answer the 
first question. 

Ad 2. Against the Church would act the one who works against 
the spirit of the Church, who does not observe her laws, and offers 
occasion for violation of the same. A confessor who would advise a 
mixed marriage for any ordinary reason would certainly act against 
the Church. In our case, however, the salvation of three young 
children is at stake, which may be cared for without peril to the 
own soul. We are dealing with a man who is so in earnest about 
their Catholic education, that he for this reason alone seeks again 
a Catholic for wife. Such an one assuredly will never put any ob- 
stacles in the way of his wife's religious practices; this has been 
proven during his first marriage. ' On the contrary, there is a well- 
founded hope that he, too, may ultimately follow the lead of grace. 
Who would, therefore, censure the advice of this confessor, as 
against the Church, who recommends to a zealous Catholic such a 
spiritual work of mercy? A very similar case is recalled to the 
writer of these lines. A Protestant, upon the death of his Catholic 
wife, wanted to win a Catholic girl for his bride, so that he might 
be able to carry out his promise of bringing up his children as Cath- 
olics. The confessor advised the girl that she would be doing a 
good work by accepting the offer. But she declined to marry a 
Protestant ; and no Catholic can blame her for it. What happened, 
however? The man eventually married a Protestant girl, who 
thought it queer that she and her Protestant husband should bring 
the children up as Catholics. The husband at first would listen to 



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102 



THE CASUIST. 



no arguments, he desired to keep his promise. But then the Prot- 
estant minister came along, and so harangued the two that finally 
the children were sent to a Protestant church and school. 
The advice of our confessor was certainly not against the interests 

of the Church. 

Ad 3. The foregoing answers the third question. Should Mr. 
B. come to the Catholic priest and show himself the man we judge 
him to be from the facts in the case, the priest should help him to 
find such a Catholic wife, who is likely to undertake the task imposed 
by this marriage. 



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XXVI. INQUIRING IN QONFESSION FOR THE NAME 

OF AN ACCOMPLICE. 

Titia, being reprimanded by her confessor for neglecting to make 
her Easter duty, gave the following reasons to justify herself : She 
said that she was at Confession last Easter, but that the confessor re- 
fused her absolution, because she would not reveal the name of a man 
high in the city government, with whom she had sinned. The con- 
fessor urged that he might be able to reclaim the official, who was a 
Catholic, if he knew his name ; at least, he might be able to prevent 
him from doing further evil. It is not wrong, the confessor further 
urged, to make known the hidden sin of another, when there is a 
sufficient reason for making it known. In the present instance, the 
good of your neighbor demands that his sin be made known, be- 
cause he may be reclaimed to the grace of God, or, at least, pre- 
vented from repeating this sin. Titia, however, refused to make 
known the name and was dismissed, without absolution, being re- 
quested to come back in another week, which she failed to do. 

Now we ask: 

1. Is it always, and in all cases, forbidden for a confessor to 
inquire the name of an accomplice, or are there any cases when this 

is allowed? 

2. What judgment is to be formed of the confessor in question? 

3. Did the confessor incur any censure ? 

1. In answer to the first question, we would say that Benedict 
XIV issued four Apostolic Constitutions condemning the practice 
of inquiring in confession the name of an accomplice. 

The first of these constitutions begins, "Suprema omnium," and 
was issued in 1745. The second begins, "Ubi primum," and was 

103 



r^ 



I04 



THE CASUIST. 



issued in 1746. These two constitutions were first issued to the 
bishops of Portugal and Algarve. By a third constitution, beginning 
"Ad eradicandum," these two constitutions were extended to the 
whole Church. To these the same Pontiff added a fourth, "Apos- 
tolici ministerii," prescribing the mode of procedure against delin- 
quents. In these four constitutions, the Supreme Pontiff Benedict 
XIV condemns the practice of inquiring the name of an accomplice, 
and he punishes by excommunication, to be incurred ipso facto, and 
reserved to the Roman Pontiff, whosoever shall teach that the afore- 
said practice is licit, or whosoever shall defend it, or shall attack the 
decrees issued against it, or shall twist the same into another mean- 
ing; in like manner, also, suspension is decreed, "ferendae senten- 
tiae," against those who inquire the name of an accomplice, or his or 
her place of residence, or shall inquire such other information in con- 
fession that may easily discover the identity of the accomplice, and 
who shall deny absolution to penitents refusing to give this informa- 
tion. And these penalties are incurred, even though the delinquent 
may not have committed mortal sin. 

Th^heologians maintain, however, that these constitutions do not 
include each and every one inquiring the name of an accomplice. 
They except, therefore, from the penalties decreed in these constitu- 
tions all cases in which, according to true and sound teaching ("juxta 
veras ^t sanas doctrinas"), it is allowed and even necessary for 
the guidance of the penitent's conscience, to demand the name of 
the accomplice. 

Some theologians err in determining what cases are to be ex- 
cepted from the Benedictine censures. 

Those err who hold that it is allowed to inquire the degree of re- 
lationship in sins of incest. Because the degree of relationship does 
not add a new species to the sin of incest. 






' 






INQUIRING FOR ACCOMPLICE'S NAME IN CONFESSION 105 

Again, those theologians err who maintain that it is licit to inquire 
whether a maid servant lives in the same house. Because it is suf- 
ficient to inquire whether the occasion is proximate or remote. In- 
deed, it can not be said that there is any certain grave obligation to 
tell a mortal sin in Confession, if such Confession will reveal the 
identity of the accomplice. If, therefore, the penitent is not bound 
to confess such a sin, by what right may a confessor question him 

about it? 

The case may occur where concealing the name of the accomplice 
may work much evil, which evil the penitent is bound to prevent, but 
which can not be prevented except by making known the accom- 
plice to the confessor. In that case the confessor must oblige the 
penitent to make known the accomplice, and if the penitent refuse, 
he or she is not worthy of absolution, and the penitent is bound in 
conscience to make the revelation, or otherwise to be judged un- 
worthy of absolution. But it is very desirable that the identity of 
the accomplice be revealed to the confessor, not in Confession, but 
outside of it. For if the revelation be made outside of Confession, 
then the case is no longer a case of the confessor inquiring the name 
of an accomplice, but of a penitent revealing the identity of his ac- 
complice, because he is bound to do so by a higher law. 

• 2. The conduct of the confessor in this case in requiring the peni- 
tent to discover the identity of the accomplice is reprehensible. It 
is in direct opposition to the constitutions of Benedict XIV, which 
expressly forbid inquiry as to the name of an accomplice, under 
pretext of correcting him. Nor did the good that the confessor 
hoped to do, after learning the name of the accomplice, justify him, 
because it did not fall within any of the cases which require the 

revelation of an accomplice. 
The confessor is likewise blameworthy for sending Titia away 



io6 



THE CASUIST. 



i 



without absolution. However, it is not evident from the case, that 
he denied her absolution, and told her to come back, in order to 
induce her to make known her accomplice. 

3. The confessor incurred excommunication, reserved to the Holy 
See, because he taught, and defended, and recommended a practice 
condemned as detestable by Benedict XIV. That he did so in pri- 
vate, and not publicly, does not exempt him from the censure. For 
in the constitution of Pius IX, "Apostolicae Sedis," all those incur 
the excommunication who teach or defend, either publicly or in pri- 
vate, propositions condemned by the Holy See. 

It might be urged in the confessor's defense that he did not teach 
that it was licit to deny absolution in this case. But such defense 
seems to lack any solid foundatiorf. Some theologians, indeed, hold 
that no excommunication is incurred where the confessor does not 
teach that it is licit to deny absolution. But this can not be gath- 
ered from the Benedictine constitutions ; because where they speak 
of the excommunication incurred, they do not make mention of 
"absolution"; they speak of absolution only in connection with the 
suspension incurred by the confessor. Wherefore the confessor is 
not suspended, unless he teach that the practice of inquiring the 
name of an accomplice is licit, and threaten the penitent with a denial 
of absolution, as an inducement to make the revelation. The con- 
fessor, therefore, in this case, has committed a mortal sin, has in- 
curred excommunication reserved to the Pope, and should be pun- 
ished with suspension, if he denied the penitent absolution because 
she would not reveal the name of her accomplice. 

In conclusion it is to be noted that Benedict XIV obliges all per- 
sons who shall in any manner have knowledge of such confessors, to 
denounce them. The penitent alone, in his or her own cause, is ex- 
cused from the obligation of denouncing, "ne seipsum prodat." The 



• 



INQUIRING FOR ACCOMPLICE'S NAME IN CONFESSION 107 

priest, therefore, who knows of such confessors, outside of Confes- 
sion, is bound to denounce them. This denunciation is to be made to 
the Holy Office. Strictly speaking, if the offense was committed 
"ex prava voluntate," the confessor is to be denounced to the Holy 
Office. If the offense was committed "ex animi levitate/' the con- 
fessor is to be denounced to the Ordinary. But the Holy Office is to 
judge whether the offense was committed "ex prava voluntate" or 
"ex animi levitate." Therefore, in either case, the denunciation is to 
be made to the Holy Office. 



XXVII. A CASE OF RESTITUTION. 

Some time ago a fire broke out in a store in which John is em- 
ployed as a clerk. To increase the amount of damages which his 
employer would receive from the insurance company, John, together 
with another clerk named Donald, testified that a large quantity of 
silk goods and laces had been destroyed by the fire, when, in fact, 
they had been removed by the proprietor and were intact. In the 
meantime the storekeeper has disposed of his business and removed 
elsewhere. Donald has a good position in a large New York house, 
but John makes scarcely enough to keep him. 

All this John makes known in his Easter confession. He knew at 
the time that he made the statement to the insurance agents about 
the silk goods and laces that it was a false statement, but Donald's 
testimony alone would not have sufficed to recover the supposed 
damages, and so he was induced to make a joint statement with 
Donald. He did not profit by it himself, nor does he know how 
much money the storekeeper got from the insurance people for the 
silk and laces, except that it was hundreds of dollars. When ques- 
tioned further by the confessor, John admits that there is no 
probability whatsoever, that either the storekeeper or Donald will 
ever make any restitution, neither of them being Catholics. Under 
these circumstances, the confessor holds John to restitution in the 
full amount. But John has nothing wherewith to make restitution, 
neither does he know the exact amount to be restored, nor the parties 
to whom restitution is to be made, since the old company has gone 
out of business and a new concern has bought up its interests. Under 
these circumstances the confessor volunteers himself to find out how 
much money was recovered from the insurance people for the silk 

1 08 



A CASE OF RESTITUTION. 



109 



! 



and laces, and to what individuals restitution must be made, and to 
inform John later of the results of his inquiries. In the meantime, 
however, the confessor grows anxious about the course he is taking 
in the matter, and asks whether he is acting rightly. Theoretically, 
there can be no doubt of John's obligation to make restitution, but 
only in case the storekeeper refuses to restore, in which case John is 
held jointly with Donald, because Donald's testimony, by itself, did 
not suffice to prove the supposed damage. Therefore, John is liable, 
together with Donald, for the whole amount, but only in the second 
instance, that is, in case the storekeeper does not make good, in 
which case John may recover from the storekeeper. But Donald re- 
fuses to pay his share ; therefore, John is liable for the full amount, 
but with the right to recover from Donald, Donald's half of the 
amount restored. In principle, therefore, the decision of the con- 
fessor is correct. In practice, however, we are obliged to take a 
different view of the confessor's conduct. 

In the first place, the confessor acted imprudently in undertaking 
to find out for John the exact amount of money paid by the insur- 
ance company to the storekeeper for the supposed destruction of the 
silk goods and laces, and to what persons this money should be re- 
stored. There is always danger of breaking the seal of confession in 
making such inquiries. Moreover, even supposing the penitent gives 
the necessary permission to make the inquiry, the undertaking is 
odious in itself, and may lead to embarrassing complications. There 
is no need, in the present instance, of such an investigation, because 
John has no means wherewith to restore. There is question of mak- 
ing restitution to an insurance company. These companies are op- 
erated and secured by the premiums paid by the persons insured. The 
rate of the premiums depends on the risk the company takes in insur- 
ing, the risk being computed on the average frequency of fires, as 



' \ 



no 



THE CASUIST. 



k 



shown by the records of insurance companies, no account being taken 
whether the fires are accidental or of incendiary origin. The com- 
pany endeavors, by means of restrictive clauses and thorough inves- 
tigation into the origin of each fire, to protect itself against fraud. 
However, it can not guard against every deception practised by the 
insured. Therefore, in fixing the rate for insurance the company 
considers only the possible damages it may have to pay. Hence it 
follows that the carriers of fire insurance policies are themselves, to 
some extent, the sufferers when unjust fire damages are allowed, 
because they pay a higher premium rate in consequence of fires of 
incendiary origin. If no fraud were practised on insurance com- 
panies^ holders of policies in the same, the rate for insurance in 
such cqrpj[>anies would be much lower than it is. It is but just that 
the policy-holders should be indemnified for unjust damages they 
are thus indirectly made to suffer. But the number of policy-holders 
is so great that the amount of restitution to be made to each policy- 
holder for damage done him by any particular fire is inconsiderable. 
Moreover, their identity is unknown. Therefore, the poor may be 
substituted for them and restitution made to the poor. In this view, 
and it is well founded (cf. Lehmkuhl, I. H, 34), John's case may 
be easily disposed of. John is actuated by a sincere desire of mak- 
ing restitution, but is prevented by his poverty. The confessor 
may tell him that he may give alms to the poor by way of restitution, 
and as he is poor himself, he is included in the number of those who 
may benefit by the alms. In this way John's conscience is set at rest. 
But the storekeeper and Donald are still bound to restore. 



XXVIII. THE PAULINE PRIVILEGE. 

Case submitted : 

A certain unbaptized lady was married to an unbaptized man. 
They separated before the civil court. The lady got married again, 
and wished to join the Catholic Church with her husband. Not 
having been informed about her former marriage to the infidel, and 
finding them sincere and well disposed, I baptized them and married 

them. 

I did it because, 1, they live in the mountains, among the Mor- 
mons, and everything was prepared when I arrived there ; 2, because 
I thought that she had the privilege by the "Casus Apostoli," 
although "interpellatio non facta fuit." Our bishop says that he 
doubts whether in his faculties he has the power to dispense in the 
"interpellatio partis infidelis." Do you know whether the Holy 
Father gives this power to the bishops in this country? Some say 
that they have the power. 

It would be too bad, not only for that couple, but for numerous 
relatives, who desire to enter the true Church. In case the "inter- 
pellatio" is necessary "quoad validitatem," must I procure a dis- 
pensation "in radice"? 

Solution: 

The case here submitted gives rise to the following questions : 

1. Is the "interpellatio partis infidelis" required "ad validitatem" 
or only "ad licitatem novi matrimonii" ? 

2. Have the bishops of the United States faculties to dispense "a 
facienda interpellatione" ? 

3. What ought the priest to have done as soon as he learned of 

the first marriage ? 

in 



112 



THE CASUIST. 



4. What is to be done now ? 

1. Is the interpellation required for the validity of the new mar- 
riage, or only for its licitness? 

Answer.— The theologians are not agreed as to whether the in- 
terpellation of the unbaptized party is required for the validity of 
the new marriage, or only to make it licit. The greater number favor 
the opinion that the interpellation is of divine command— juris divini 
—and that its omission, without Papal dispensation, makes the new 
marriage invalid. Card. D'Annibale (1. III. n. 476) says to the 
question "utrum interpellatio necessaria sit ex jure divino? Sen- 
tentia longe communior affirmat. ,, 

The theologians who hold that the interpellation is required for 
the licitness only of the new marriage, contend that the validity of 
the new marriage, contracted without the interpellation and without 
a Papal dispensation, will depend, "ex jure divino," on the willing- 
ness or unwillingness of the unbaptized party to be converted or to 
cohabit in peace, etc. The new marriage of the baptized party will 
be valid or invalid, according as the subsequent investigation shall 
prove that the unbaptized party to the first marriage was willing 
or unwilling to be baptized or to dwell with the Catholic party with- 
out sin, etc. 

These theologians hold that the interpellation is a "medium 
dignoscendi utrum de facto verificetur casus apostoli, quemadmodum 
inquisitio de morte conjugis requiritur ad licitam novi matrimonii 
celebrationem, sed ejus omissio non efficit novas nuptias esse nullas 

et irritas". 

„ Thus Ballerini-Palmieri (VI. n. 619), "Ego vero nescio, cur et in 
casu nostro, non sit pari modo arguendum (as in the case of estab- 
lishing the fact of the husband's or wife's death, before contracting 
a new alliance), nempe, certe eum peccare qui, non interpellata 






THE PAULINE PRIVILEGE. 



"3 



parte infideli, novum contrahit matrimonium ; sed valide contrahere, 
si infidelis seipsa cohabitare aut convert! nolebat, invalide, si consen- 
tiebat conversioni aut cohabitationi." Indeed, there are some theo- 
logians who argue that the omission of the interpellation would not 
even render the new marriage illicit, if the unwillingness of the un- 
baptized party to be converted had been proven for certain in some 
other way. But whatever may be said of the probability of these 
opinions which deny the need of interpellating "quoad validitatem 
novi matrimonii," it must be admitted that the greater number of 
theologians hold that the interpellations are "juris divini," and their 
omission, without Papal dispensation, renders the new marriage in- 
valid. Moreover, innumerable decrees and answers of the Holy See 
prove beyond doubt that it is never licit to omit the interpellation 
without the permission of competent authority. 

In the year 1884, the Bishop of Portland consulted the S. Congr. 
de Prop. Fide on the following question: "Utrum, ubi agitur de 
dissolutione matrimonii in infidelitate contracti . ■ . . et ubi pars 
infidelis divortio legali a viro soluta, ad alias nuptias convolavit, 
interpellatio omnino necessaria esset, etiam cum sequentibus maximis 
incommodis, scilicet, 1, mulier infidelis interpellationem ut sibi in- 
juridam reputat; 2, vir ejus novus indignatus audit interpellationem 
et si viva voce interpellatio fit, nuntius aliquando non sine periculo 
munere suo fungetur ; 3, ubi vir aut mulier divortio solutus ad aliud, 
ut aiunt, matrimonium jam transivit, non posset ad priorem spon- 
sum redire : 'obstat enim lex civilis.' " 

To this question the S. Congr. de Prop. Fide replied as follows : 
"Ad mentem. Mens est, quod neque divortium, neque secundum 
matrimonium civile sunt sufficientia ad eximendum ab obligatione 
interpellationis. Quatenus vero saltern summarie et extrajudicialiter 
constet interpellationem vel impossibilem vel inutilem fore, utetur 



£ 






U4 



THE CASUIST. 



THE PAULINE PRIVILEGE. 



"5 



Episcopus f acultate dispensandi, si ea pollct ; sin minus, supplicandum 
sanctissimo pro facilitate pro decern casibus. SSmus, approbavit et 
facultatem concessit" (G. P. F. 1360). Feije (Disp. n. 493) says: 
If the baptized party contract a new marriage, without interpellating, 
and without procuring a dispensation from the interpellations, then 
the baptized party sins grievously. The validity, however, of the 
marriage, in the opinion of many theologians, will depend on the 
subsequent consent or refusal of the unbaptized party to be con- 
verted and to cohabit peaceably, etc. This opinion, however, con- 
tinues Feije, does not agree with the decisions of the S. Congr. de 
Prop. Fide (March 5, 1816), which Congregation has declared, in 
some particular cases, a marriage invalid which was contracted with- 
out first interpellating or procuring a Papal dispensation. 

Little, if anything, can be concluded from the rulings of the S. 
Congregations concerning the necessity of interpellating on pain of 
invalidating the new marriage. The decisions of the Sacred Con- 
gregations refer to particular cases, and they purposely refrain from 
using terms that might be construed as settling a general point in 
dispute among the theologians. Thus the Propaganda was asked, 
March 5, 1816, "utrum interpellate sit de jure divino, atque adeo 
necessaria, ut ea neglecta, nullus plane habeatur locus dissolvendi 
matrimonii" and returned this answer, "se noluisse ex professo huic 
petito respondere," etc * 

There is no foundation for the categorical statement that "out- 
side of the case of a Papal dispensation, the interpellation is always 
required, jure divino, and that on pain of invalidity of a new mar- 
riage" (Smith, Marriage Process, n. 305). 

Since theoretically, therefore, theologians are not agreed as to the 
nature of the need of interpellating, practically the interpellations are 
always to be made, or a Papal dispensation from them must be pro- 



cured, because any other course would leave the subsequent mar- 
riage a doubtful contract, and jeopardize the validity of the sacra- 
ment. 

Second Question.— Rave the bishops of the United States facul- 
ties to dispense from the interpellations? They have no general 
faculties. Some individual bishops may have faculties to dispense 
from the interpellations for a certain number of cases, but there 
are no general faculties given to all our bishops as a body. Smith 
(Mar. Proc. n. 302) says: "Bishops in the United States have no 
such Papal delegation, at least generally speaking, and consequently 
recourse is to be had to Rome in each case with us, as is also plainly 
intimated by the S. Congr. de Prop. Fide, Instr. Causae Mat. sect. 
45, Append. III. PI. C. Bait." 

The words of the "Instruction" are as follows : 

"Si matrimonium accident cum parte catholica post baptismi 
susceptionem, erit inquirendum, utrum praecesserit conjugis adhuc 
infidelis canonica interpellatio, aut saltern a legitima potestate fuerit 
super eadem interpellatione dispensatum. Quatenus constiterit de 
facta interpellatione aut de illius dispensatione, primum matrimonium 
nequit amplius constituere vinculum secundum connubium irritans ; 
quatenus vero neque interpellatio, neque ejusdem dispensatio prae- 
cesserit, primum matrimonium obstabit quidem secundo, sed Ordi- 
narius judicium suspendere debebit et casum, cum omnibus suis cir- 
cumstantiis ad S. Sedem remittere, quae ipsi Ordinario quid 
faciendum sit, indicabit." Putzer (Comment, in Facult Apost. n. 
130) says: "An hac facultate etiam nostri Episcopi (U. S. A.) 
gaudeant, publice non constat." 

Among the faculties granted by the Holy See to the bishops of 
the United States is this one: "Dispensandi cum gentilibus et in- 
fidelibus plures uxores habentibus, ut post conversionem et bap- 






n6 



THE CASUIST. 



tismum, quam ex illis maluerint, si etiam ipsa fidelis fiat retinere pos- 
sint, nisi prima voluerit converti." 

Our bishops, therefore, may dispense from the second of the two 
interpellations, namely, whether the unbaptized party will cohabit in 
peace, etc., but not from the first interpellation, namely, whether the 
unbaptized party is willing to receive baptism. 

Third Question.— What ought the priest to have done as soon 
as he learned of the first marriage? In the first place he might have 
prudently suspected the possibility, if not the probability, of some 
such previous marriage and divorce under the circumstances, since 
such things are so common in the United States, and elicited the in- 
formation in time to make the interpellations or to procure a dis- 
pensation from the proper authorities. Of course, this was im- 
possible at the moment when the priest did, as a matter of fact, 
learn of the previous marriage and divorce. The parties live 
far away in the mountains. They are living together in good faith 
as husband and wife. They are to be baptized and then married. 
Everything is ready. The only practicable course open to the priest 
would seem to be to leave them in good faith and marry them and 
then procure a dispensation from the interpellations and have them 

renew their consent. 

There is ample reason, under the circumstances, to petition the 
Holy See for a dispensation. The second husband is a Catholic now, 
and the parties are in good faith, and there is no hope of the wife 
ever returning to the first husband, from whom she is legally 
divorced and who is unbaptized. 

The effect of this Papal dispensation from the interpellations is 
"ut matrimonium partis neo-conversae cum altero fideli sit validum 
et omnimoda firmitate gaudeat, etiamsi postea constaret de bona dis- 
positione compartis infidelis, momento quo data fuit dispensatio, 



} 



THE PAULINE PRIVILEGE. 



117 



\ 



imo, etiamsi probaretur hoc ipso momento, partem quae credebatur 
infidelis, jam fuisse baptizatum" (De Becker, de Mat. p. 456). 

Fourth Question.— -What is to be done now ? Leave the parties in 
good faith and procure a dispensation from the interpellations and 
then make them renew their consent. In this case, according to a 
recent reply of the Congr. of the Holy Office, there is no "sanatio in 
radice," "in hoc casu non dari locum dispensationi in radice," etc. 
(Jan. 17, 1900). Consequently, after procuring the dispensation, 
the parties must be married over again, that is, renew their consent 
in the presence of the parish priest and two witnesses. 










XXIX. MAY A PERSON BE DISPENSED FROM 

HEARING MASS ON SUNDAYS, IF GOING 

TO MASS BECOMES A PROXIMATE 

OCCASION OF SIN? 

The case is this : One Robert Smith, a farmer and the father of 
several children, is greatly addicted to strong . drink, and in con- 
sequence his farm is heavily encumbered. In other regards he is a 
good father, and during the week keeps quite sober and is industrious 
and economical. But when he comes to town on Sundays to hear 
Mass he can not resist the temptation to visit the saloons, where he 
spends the entire day in drinking, and returns home Sunday evenings 
regularly in a sad state of intoxication. In this way he becomes, * 
every Sunday, a source of scandal for the whole congregation, and 
sinks his family into ever deeper misery. 

He means well, however, and is. thoroughly conscious of his mis- 
erable condition, and, in utter dejection, he goes to Confession and 
says : "Father, I don't know what I shall do to save myself from 
this fatal weakness. I have tried repeatedly all the means you recom- 
mended. I have prayed. I have firmly resolved to return home im- 
mediately after Mass. I have even requested a friend of mine to 
accompany me, etc., but all to no purpose. Every time that I come 
to town I am drawn irresistibly to the saloon, and in spite of all my 
good resolutions I seem to be utterly powerless in the presence of 
the temptation. Now, I sometimes think to myself, it would be 
better not to come to Mass at all on Sundays than to come to Mass 
and get drunk. I think it would be better for me if I remained at 
home altogether on Sundays for a while, until I get this passion for 

118 



v 



: 



> 






MAY A PERSON BE DISPENSED FROM HEARING MASS? 119 

drink under control. But I should like to have your advice in the 
matter." 

"Very good," answers the confessor. "If you think that staying 
at home on Sundays is the only means left you for overcoming the 
drink habit, I will dispense you from hearing Mass on Sundays. Re- 
main at home for some Sundays, and endeavor to get control of your- 
self in this matter. Then come to Mass again. In the meantime, 
however, say your Mass-prayers at home." 

Question. — Did the confessor act rightly? 

Answer.— -We think that he did, and for the following reasons : 

1. Smith is here in the presence of two conflicting duties. On the 
one hand, he is bound to avoid the proximate occasion of sin, which, 
in the present instance, is his attendance at Mass on Sunday. On the 
other, he is bound to fulfil the precept of the Church, namely, to hear 
Mass on Sundays and holydays of obligation. But since the obliga- 
tion of avoiding the proximate occasion of sin is imposed by a law 
of nature, absolute and negative, it takes precedence over the obliga- 
tion of hearing Mass on Sunday, which is imposed by a law of the 
Church, hypothetical and affirmative. For this reason alone, Smith 
may be dispensed from the obligation of hearing Mass on Sunday, 
since attendance at Mass becomes for him, per accidens, a proximate 

occasion <?f sin. 

2. A precept of the Church, at least in so far as it is of an afarma- 
tive character, in general does not oblige "sub gravi incommodo vel 
damno aut proximo gravis damni periculo." But in regard, par- 
ticularly, to hearing Mass, St. Alphonsus says : "Excusat ab audienda 
missa quaevis causa tnediocriter gravis, sc. quae involvit notabile 
aliquod incommodum aut damnum in bonis animae vel corporis pro- 
prii aut alieni" (Lib. III. n. 324). 

These passages excuse Smith from hearing Mass, for, as things 



120 



THE CASUIST. 



stand at present, attendance at Mass is for him a "proximum gravis 
damni periculum," which involves a "notabile damnum in bonis ani- 
mae" for him. Under the circumstances, therefore, the confessor 
acted rightly in dispensing Smith from attendance at Mass — that is, 
in declaring authoritatively that for the present there is no obligation 
for Smith to hear Mass on Sundays or holydays. 

The circumstance that the "occasio proximo" and the "proxi- 
mum gravis damni periculum" are of Smith's own creation does 
not oblige him to hear Mass, for St. Alphonsus says expressly in 
regard to this : "Excusat etiam impotentia ilia, cui antea causam cum 
peccato dedisti, dummodo de hoc vere doleaf (Lib. I. n. 176). 

It is true, indeed, that Smith, owing to his excessive indulgence 
in drink, has created for himself an "impotentia moralis audiendi 
missam" But as he is heartily sorry for this, it is not right, in this 
particular instance, to hold him to the consequences of his fault, 
unless we wish to make the evil even greater than it is. 

Here another question may be asked : Is it lawful for the confessor 
to allow Smith, who is an "occasionarius" and "recidivus," to re- 
main so long a time away from Mass ? Undoubtedly it is, provided 
only that the confessor knows for a certainty that Smith has dili- 
gently employed all the other means recommended by him for avoid- 
ing the proximate occasion, and uprooting the bad habit, especially 
the frequent reception of the sacraments, and, nevertheless, has 
always fallen back into the old sin. In this case the confessor 
must use extreme measures, since it is an axiom in morals that the 
"occasio moraliter necessaria" (and such is the case under con- 
sideration) must be given up "cum quocunque damno vel incom- 
modo, si poenitens etiam adhibitis mediis, eodem modo relabitur" 
The confessor, therefore, has the right, since all ordinary means have 
failed, to have recourse to extreme remedies ; that is, to dispense the 



1 



i 



MAY A PERSON BE DISPENSED FROM HEARING MASSf 121 

penitent from attendance at Mass on Sundays for such a period of 
time as shall seem to him necessary for the removal of the proximate 
occasion. Smith may be protected against the danger of becoming 
careless about hearing Mass on Sunday by being obliged to per- 
form some special acts of devotion at home on such days. Although 
a person is not obliged to perform any special devotions or acts of 
piety, or to hear Mass on weekdays, if he is prevented from hearing 
Mass on Sunday, still, as Lehmkuhl says (I. n. 567), "qui per totum 
annum impediretur quominus diebus Dominicis et festivis sacro in- 
teresset, aliquoties id sup pier e deberet diebus ferialibus (e. g. ter. 

quaterve)" 

In this case the confessor should not neglect to hold Smith to 
some special acts of devotion on Sundays, v. g., to the recitation of 
the Rosary, because it is Smith's own fault that he is not in a posi- 
tion to hear Mass on that day. 

Another question suggests itself in connection with this case, 
namely : Will not this dispensation, which is granted to Smith to 
absent himself from Mass on Sundays, cause grave scandal in the 
parish, especially when it becomes known that Smith has been dis- 
pensed from hearing Mass for such a long period of time ? To this 
question, Lehmkuhl replies as follows : "Si propter meam actionem, 
proximo difficile erit a peccato abstinere, proportionate gravis causa 
ex me a parte requiritur ut agere possim; igitur gravior, quo major 
est alterius difficultas majusque peccatum" (I. n. 633). It is very 
likely that Smith's absence from Mass on Sundays will cause scandal 
among the members of the parish. Nevertheless, the reason for per- 
mitting the scandal is so grave that there is no occasion for any 
qualms of conscience. The penitent may also forestall the scandal 
in large measure by stating openly his reason for staying away from 
Mass on Sundays, saying that he is acting on the advice of his con- 



122 



THE CASUIST. 



fessor, and as a last means of conquering his appetite for strong 
drink. Nor does such a statement contain any personal defamation. 
On the contrary, the good will and sincere desire to reform revealed 
by such an admission will contribute largely to repair the scandal 
given in the past. 






XXX. CONCERNING THE PERUSAL OF PRIVATE 

REVELATIONS. 

1. There are many persons, especially women endeavoring to 
lead a holy life, who occupy themselves a great deal with so-called 
revelations made to pious persons, even to the exclusion of all other 
spiritual reading matter. Sometimes such persons study the revela- 
tions made to some particular saint, drawing all their spiritual nour- 
ishment from them; then having their appetite whetted by the 
perusal of one book of this kind, they eagerly devour anything of 
the same nature that they are able to lay hold of. They believe in 
these revelations as firmly as they believe in the Gospels and are 
strongly disposed to brand as heretics, or at least as suspects, all 
who do not put the same faith in them as they do themselves. This 
disposition alone is sufficient to prove that the perusal of these 
private revelations is not a healthy, spiritual exercise for all indis- 
criminately, and it becomes necessary from time to time to instruct 
the faithful on this head. 

2. That there may be, that there have been, and that there are 
at present revelations made to private individuals is beyond ques- 
tion. We are speaking, of course, of revelations made to holy and 
devout persons, which have been investigated by the Church and ! 
declared to contain nothing against faith or good morals. No posi- 
tive ecclesiastical approbation is ever given to such revelations. 

3. When the Church revises and approves revelations and visions 
in this sense, all she does is to certify that these visions and revela- 
tions contain nothing against the "rule of faith," the "regula fidei" ; 
so that the faithful may believe them without injury to their faith 
(pie creditur) and use them as a guide to conduct without fear of 

123 









r" 



124 



THE CASUIST. 



believing or doing anything unauthorized by the Church. Where 
the Church has thus given her approval to any particular private 
revelation, it is no longer permitted to ridicule or to despise it. "Fas 
non est," says Card. Franzelin, "tales revelationes contemnere" (de 
div. trad. 22). To do so were to fail in the respect due to the 
Church. But not to believe the revelation is no sin against the 
obedience we owe the Church. For the Church, by her approval 
or quasi-approval of these revelations, has no intention of obliging 
the faithful to believe them. Whoever believes in them, does so 
"fide humana," and not "fide divina," at least not "fide divina 
Catholica." 

"In spiritual things," says Catherine Emmerich, "I never be- 
lieved anything except what was revealed by God and proposed for 
my belief by the Catholic Church. What I saw in visions I never 
believed in this way." 

4. The body of revealed truth, necessary to salvation and bearing 
the seal of infallibility, was completed and closed, once for all, by 
the teachings of Christ and the apostles. When the Church defines 
a new dogma, she simply declares authoritatively that it is contained 
in the teachings of Our Lord and the apostles. Just as private reve- 
lations do not bear the seal of infallibility, so neither do they bear the 
mark of inerrancy. There is no divine inspiration guaranteeing the 
i correct recording of private revelations, as is the case with the Holy 
Scriptures, even though the fact of the revelations has been es- 
tablished. 

Private revelations are exposed to a threefold danger. The under- 
standing may err in receiving the revelation. The memory may fail 
in recording orally or in writing the contents of the revelation. The 
tongue may err in its effort to clothe the revelation in human words. 

Moreover, as Bened. XIV remarks, notions and ideas acquired pre- 






CONCERNING PERUSAL OF PRIVATE REVELATIONS. 125 

vious to the revelation may be confounded by the person receiving 
the revelation with the things learned in the revelation, and thus 
the saints have sometimes considered things to have been revealed 
to them which were in nowise revealed. Hence the contradic- 
tions in different revelations. 

5. The supernatural communication, therefore, as well in its re- 
ception as in its transmission, may be unwittingly falsified. The 
Holy Scriptures alone are preserved from such falsifications. And 
thus it happens that the private revelations of different holy persons 
contradict one another openly, and in many things. 

6. All that the Church says, therefore, when she lends her ap- 
proval to the private revelations of the saints or other holy persons, 
is that these revelations may be believed "fide humana," and that 
they are adapted and may be used for the edification of the faithful. 

The declaration of Bened. XIV does not contradict this : "When 
the Church has examined and approved these visions, no one may 
any longer doubt their supernatural and divine origin." The Pope 
speaks only of their origin, and not at all of their contents, nor of 
their correct reproduction. And even a refusal to believe in their 
divine origin would not be a sin against Catholic faith. 

7. After these theoretical remarks let us add a few words of a 
practical nature. The reading of these visions and private revela- 
tions is in nowise adapted to the needs of ordinary people, even 
though they may have correct notions about the credibility of private 
revelations. Many of these revelations are beyond the needs and the 
intelligence even of persons already far advanced in the spiritual life, 
and are often clothed in language quite unintelligible. And herein 
precisely lies a new source of anxiety, because a new danger, namely, 
the danger of understanding the revelation in a wrong sense, which 
may easily lead to positive error and sin against the "rule of faith." 



126 



THE CASUIST. 



8. Besides the danger just mentioned there is another, namely, 
the danger of a one-sided and an imperfect direction in holiness, and 
of laying great stress on trifles and things of secondary importance. 
But what is worst of all is that the reading of these revelations gives 
rise to secret spiritual pride and makes silly pious people, for it is 
such persons that are most addicted to this kind of reading, that 
imagine themselves farther advanced in the ways of perfection than 
others and think that they know more about matters of faith and 
morals than most other people, even more than the priests them- 
selves. 

9. It may cause some surprise if we add a warning for members 
of religious orders, especially of women. As a general rule, it is 
not advisable to make use of histories of private revelations, made 
to pious and holy persons, for general community reading. And 
those in authority in religious communities should be very slow to 
allow individual members of the community to make use of the same 
for their private reading. Women in religious orders who are 
endeavoring to lead holy lives are more apt to evince a weakness for 
what is extraordinary than for what is ordinary in their quest of 
perfection, than their sisters in the world. They prefer the revela- 
tions of St. Brigitta or of St. Gertrude to an ordinary introduction 
to the spiritual life. And it is precisely those who are by no means 
firmly grounded in the spiritual life who hanker after what is higher 
before they understand or put into practice the most ordinary and 
necessary requirements of spiritual growth. In the case of religious 
the evil effects of this kind of reading are more pronounced and 
more disastrous than in the case of lay people, and they sometimes 
create disturbance and division in an entire convent. 

10. Some may think these remarks and warnings too severe and 
even exaggerated. And such indeed were the case did we apply 



CONCERNING PERUSAL OF PRIVATE REVELATIONS. 127 

them, a priori, to all private revelations. They hold good only 
for those who read indiscriminately, and without selecting, especially 
revelations made to holy persons in times long gone by, and which 
are profoundly mystic, not to say apocalyptic in their presentation. 

Simple books, and books that may be readily understood, like 
the visions of Catherine Emmerich concerning the life and suffer- 
ings of Our Lord and His Blessed Mother, are much to be pre- 
ferred to others, and we would even recommend them. 



XXXI. DISPENSATION FROM IMPEDIMENTUM IM- 
PEDIENS ARISING FROM BETROTHAL. 

John contracts valid espousals with Mary, but afterward falls in 
love with Martha, and, without any just cause, deserts Mary. When 
he goes to the parish priest to get married to Martha, Mary puts in 
her claim, and the priest sustains her right. Then John and 
Martha go before a magistrate and contract civil marriage, which, 
where the Tridentine decree is published, is no marriage at all. 

After some time, when they have two children, they wish to be- 
come reconciled with the Church, and also to legitimatize the chil- 
dren ; so they ask the parish priest to try to persuade Mary to give up 
her right, but the attempt is vain. The worried pastor is telling his 
troubles to a neighbor, and is surprised to hear that the matter can 
be fixed by a dispensation from the Sovereign Pontiff. He doubts 
whether the Roman Pontiff can give a dispensation hurtful to the 
interests of a third party, so he submits the following questions to a 
theologian : 

i. Whether and for what cause can the Roman Pontiff dispense 
from an impedimentum impediens arising from valid betrothal? 

2. Whether in the present case there is sufficient ground for a dis- 
pensation ? 

3. Whether Mary should have given up her right? 

4. Whether, supposing a dispensation granted, John has still any 
obligations to Mary ? 

I. Since it is a question of the Roman Pontiff in his public 
capacity, we can infer from fact to right. Now the Roman Pontiff 
does dispense in such cases. Therefore, he has the right. 

128 



IMPEDIMENT ARISING FROM BETROTHAL. 129 

Moreover, "cui licet quod est plus, licet utique quod est minus/ 9 
Now the Pope can dispense in the case of a marriage ratum non con- 
summatum. Therefore, a fortiori, he can dispense from these lesser 

impediments. 

It is true that in betrothal there is a right acquired by the other 
party, and the difficulty is : How can the judge, as defender of the 
law, act prejudicially to the rights of this other party? It must be 
remembered, however, that the Pope is Chief Legislator as well as 
Chief Judge. As Chief Judge, he must urge the observance of the 
law. But as Chief Legislator, he can undoubtedly dispense from the 
law he has made ; for the law-maker can dispense from the law. 

However, he can not do so arbitrarily and without cause. The 
gloss in can. I. dist. 22 in Decret. v. injustitiam says, "nee Papam 
debere urn detrahere ut det alteri nisi subsit causa." It therefore re- 
quires a grave and just cause for the Pope, although he is Chief 
Legislator, to use this power. The question now is whether such 

cause exists. 

II. There is no doubt that John did Mary a serious wrong when 
he deserted her, and committed a grave sin. But should he be 
compelled to leave Martha and her two children and marry Mary? 
No one can sincerely propose such a solution. Suppose that after 
he contracts Christian marriage with Mary, the civil power were to 
intervene and order him to restore Martha to conjugal rights. It is 
evident that there are quite sufficient causes for granting the dis- 
pensation. And as a matter of fact, in our own times the Pope has 
granted dispensations of this sort. 

III. Mary ought to give up her claim, not by the strict rigor of 
justice, but from charity. She could properly urge her claim until 
the man went through the civil contract, but afterward, considering 
his obligation before the civil law, and the birth of his children, 



X 



13° 



THE CASUIST. 



and desire of the parents to be reconciled with the Church, she ought 
to make things smooth by giving up her right. She owes it to herself 
as well as to them, for even if she married the man before the 
Church, the other woman would have a claim on him in the eyes of 
the civil law. 

IV. Even if a dispensation is granted, the rejected girl still has 
certain claims : I. He must restore any presents he has of her, though 
she is not bound to send back his gifts. 2. He must make com- 
pensation for any evils which she may have sustained by his breaking 
the engagement. 

It is a disputed question whether the engagement holds if Martha 
dies before the others. Some hold that the betrothal remains in 
suspense, and binds once more if the wife dies ; others that it becomes 
altogether extinct. Arguments are drawn by both sides from the 
texts of the law, which does not seem to be clear on the question. 
But since there is no word of such an obligation in the rescript of 
the dispensations, it seems to be the mind of the legislator that by the 
dispensation the original obligation becomes extinct. In practkeTif 
such a case should arise, it would be necessary to bring it to an 
ecclesiastical judge. 









Jk 



XXXIL DOUBTFUL CONSECRATION AND ITS CON- 

SEQUENCES. 

Cajus, a young priest, is to say the solemn Mass on Holy Thurs- 
day. Because a large number of people wish to receive Holy Com- 
munion at that Mass, Cajus takes a great many small particles and 
folds them in an extra corporal and places them on the altar, be- 
side the chalice, and on the regular Mass corporal. At the offer- 
tory and at the consecration, he unfolds the corporal so that he may 
see the particles, and he directs his intention to them. Shortly after 
the consecration, he sees a small particle lying on the floor beside 
him. In his confusion he picks it up quickly and lays it on the 
consecrated particles beside the chalice. After a few moments, 
however, he begins to doubt whether the particle was consecrated 
or not. It may have fallen to the floor just before the consecration. 
Still, he thinks he would have noticed it sooner had it fallen before 
the consecration. He does not know what to do. 

If the particle was not consecrated, he can not distribute it with 
the others without committing an act of material idolatry, and de- 
priving some one of the communicants of Holy Communion. He 
can not distinguish this particle, however, from the others, and 
the people are waiting to receive Holy Communion. Cajus asks 
the Mass-server if he knows when the particle fell to the ground; 
the Mass-server does not know. In this dilemma the young priest 
distributes all the particles in Holy Communion. 

Now we ask : i . Was it right to use two corporals at the Mass ? 
2. What is to be said about Ca jus's mode of procedure with regard 
to the doubtful particle? 

I. In the Rubrics of the Mass, mention is made of only one cor- 
pora! to be used at Mass, namely the one that is spread under the 

I 3 I 



132 



THE CASUIST. 



chalice and on which the large host is laid. If small particles are 
to be consecrated during the Mass, they are to be laid on this cor- 
poral, "ante calicem, ,, or they are to be put into a second con- 
secrated chalice, or other holy vessel, which is placed on the cor- 
poral of the Mass behind the chalice of the Mass, "retro post 
calicetn" (Ritus eel. Missam. ii. 3). A second corporal is unknown 
to the Rubrics. Therefore, when many small particles are to be 
consecrated, a ciborium should be provided, or a second chalice. 
In case there is no ciborium or chalice, the small particles should be 
placed on the Mass corporal, in front of or on the side of the chalice. 
The use of a second corporal, to hold the small altar breads, is con- 
trary to the Rubrics, and could be justified only in a case of real 
necessity, when no ciborium or second chalice is to be had, and the 
small particles are too numerous to be placed on the Mass corporal. 
Even in this case, it were better to make one corporal out of the two, 
by unfolding both on the altar, and allowing one to overlap the other 
a few inches. This would be much better than folding the small 
particles in a second corporal and placing them thus folded on the 
Mass corporal. 
2. Regarding Ca jus's conduct, we remark: 

1. When Cajus picked up the small particle from the floor, he 
should have kept it separate from the other particles, and consumed 
it before or with the first ablution. That was the only correct thing 

for him to do. 

2. Once the doubtfully consecrated particle was mixed with the 
consecrated particles, and its identity lost, Cajus should not have 
given Holy Communion with any of the particles, but should have 
put them all into a ciborium or chalice and reconsecrated them all 
"sub conditioned at another Mass. 

3. If that was impracticable, as it was on Holy Thursday, be- 






DOUBTFUL CONSECRATION AND ITS CONSEQUENCES. 133 

cause there would be no other Mass on that day, Cajus should have 
removed some of the small particles from that place where he laid 
the doubtful host and placed them in a ciborium to be consecrated 
at another Mass, "sub conditioned and then given Holy Communion 
with those that remained. For, in picking up the particle from the 
floor, and placing it with the others, Cajus could be morally certain 
just about where he placed it, and by removing the particles from 
that particular region, he would be morally sure that he had removed 
the doubtful particle. If the consecrated particles remaining did 
not suffice for the faithful, they might be broken. The inconven- 
ience of breaking them would not be a sufficient reason for giving 
Holy Communion with doubtfully consecrated particles. 

4. Strictly speaking, there remains still another way of removing 
the danger of material idolatry and doubtful Holy Communion. To 
give the communicant two sacred hosts is forbidden, when it is 
done "devotionis causa" 

That it is forbidden in the present instance can scarcely be main- 
tained. By so doing all danger would be removed. Of course, the 
sacred particles would not suffice in that case, but they might be 
broken in two, and two broken particles given to each communicant, 
taking care that the broken pieces given to each communicant be 
not parts of the same host. 

In order to secure himself against the danger of giving two 
pieces of the same host to the same communicant, the celebrant 
would have to divide the particles into various fragments; some 
into two pieces, some into four pieces, etc., and give the communi- 
cant a half and a fourth part of a host. 

5. It can not be denied that circumstances may arise where it 
would be practically impossible to divide the particles, as mentioned 
under No. 4 or even as under No. 3. 






134 



THE CASUIST. 



Therefore, we will venture to remark, as a final solution of the 
difficulty, that it is more than probable that the particle picked up 
off the floor was a consecrated host. The likelihood that it was not 
is very meager. Therefore, the likelihood of giving Communion, 
in the present instance, with an unconsecrated host, is likewise very 
small; so small, in fact, that a priest would be justified in exposing 
himself to it in order to extricate himself from so embarrassing a 
situation. Nor does he do any one an irreparable injury by thus 
exposing them to the very slight danger of communicating under 
unconsecrated species. Nor would the small danger of exposing 
himself and the faithful to commit an act of material idolatry be 
a sufficient reason for abstaining from distributing all the particles 
in Holy Communion. 



S 



XXXIII. DISPOSITIONS REQUIRED FOR SAYING 

MASS. • 

Titius, a priest, at the annual retreat of the clergy, makes a gen- 
eral Confession for the past year. In the course of his Confession, 
the confessor asks him, whether, during the past year, he always said 
Mass with the right dispositions. To this Titius replies that once, 
having committed a mortal sin, he said Mass without having pre- 
viously gone to Confession. His reasons for doing so, he said, were 
that he was obliged to say Mass before he had an opportunity of 
going to Confession, because his confessor lived quite some distance 
from him, and there was no other priest to whom he could make his 
Confession, except his own assistant, who was much younger than 
himself, and besides was his nephew, and he could not bring himself 
to make his Confession to him. 

He admitted, also, that on another occasion he had fallen into a 
like sin, and had said Mass the next day without having gone to Con- 
fession, but having made an act of perfect contrition. His reason 
was that he could not have omitted Mass without giving grave 
scandal, and he had no "cotfa confessarii." The confessor inquired 
further of Titius whether in both of these instances he had complied 
with the Tridentine law of going to Confession "qmm primutn" 

after the Mass. 

Titius answered that he had complied with the law of the Council 
of Trent, by his weekly Confession, which happened, in these in- 
stances, about four or five days after saying Mass. In fact, Titius 
admitted, that on this second occasion he not only said Mass on the 
following day, when necessity obliged him to say it, but also on the 
three following days, when he might have easily omitted it. In this 

i3S 




136 



THE CASUIST. 



he thought he was justified, because by an act of perfect contrition, 
he had recovered the state of grace, and, being in the state of grace, 
he was free to say Mass every day if he so desired. 

Hearing all this the confessor hesitated in forming his judgment 
about Titius, and first put the following questions to himself : 

1. What dispositions of soul are required of a priest who desires 
to say Mass worthily? 

2. How are we to understand the law of the Council of Trent 
(s. xiii., c. 7), which obliges priests to go to confession "quam 

primurn"? 

3. Did Titius do wrong by saying Mass on these several occasions, 
and what is to be said about the reasons he advanced to justify 
himself ? 

Solution. 

1. Benedict XIV treats this matter in his work "De Sacrosancto 
Missae Sacrificio" (lib. 3. c. 11), where he gives the common and 
sound teaching of all theologians, when he says: "Sacerdotem 
oportet esse jn gratia, et ab omni lethali expiatum." If the state of 
grace is required of a lay person, before receiving Holy Communion, 
with much greater reason is it required of a priest, who desires to 

say Mass. 

Wherefore St. Thomas (3, q. 80, a. 4) treating this question, not 
especially in its relation to priests, but in its relation to all the faithful, 
whether priests or lay people, says : "quicunque cum peccato mortali 
Sacramentum Eucharistiae sumit, incurrit sacrilegium, tamquam 
sacramenti violator, et ideo mortaliter peccat." This doctrine he 
draws from the letter of St. Paul to the Corinthians : "qui manducat 
et bibit indigne, judicium sibi manducat et bibit." He interprets 
this text by the authority of Peter Lombard "indigne manducat et 
bibit qui in crimine est." The Council of Trent merely recalls the 



DISPOSITIONS REQUIRED FOR SAYING MASS. 137 

doctrine of St. Thomas, with the text from St. Paul, and then adds : 
"quare communicare volenti revocandum est in memoriam ejus 
praeceptum : probet autem seipsum homo." 

All of which, in our case, is equivalent to saying that as often as 
a priest is about to say Mass, and is conscious of mortal sin, it is nec- 
essary that he should first cleanse his soul from mortal sin and then 
approach the altar of God. Further on, the Council authentically in- 
terprets the text from St. Paul, and declares that the way to cleanse 
the conscience from mortal sin before Holy Communion is sacra- 
mental Confession. The words of the canon (12) are as follows: 

"Ne tantum Sacramentum indigne atque ideo in mortem et con- 
demnationem sumatur, statuit et declarat ipsa S. Synodus, illos quos 
conscientia peccati mortalis gravat, quantumcumque etiam se con- 
tritos existiment, habita copia confessoris, necessario praemittendam 
esse confessionem sacramentalem." With right, therefore, is this 
obligation of going to Confession before saying Mass, if conscious 
of mortal sin, drawn from the words of the apostle ; for whosoever 
approaches the holy table must have the testimony of a good con- 
science, and if he be in sin, he must needs cleanse his soul. Now 
the ordinary way of cleansing the soul from mortal sin is by means 
of sacramental Confession. Therefore, sacramental Confession is 
necessary for any one desiring to receive Holy Communion and 
conscious of mortal sin. And, therefore, also, only in case of neces- 
sity is it sufficient to make an act of perfect contrition with a firm 

purpose of confessing. 

2. "Quodsi necessitate urgente," says the Council of Trent, "sa-. 
cerdos absque praevia confessione celebraverit, quam primum con- 
fiteatur." This law is binding only on priests, solos sacerdotes ad- 

stringit. 
Two false interpretations have been put on this law of the^Council 







i3» 



THE CASUIST. 



of Trent. Both of them have been condemned by Pope Alex- 
ander VII. 

The first is that this law contains only a counsel or recommenda- 
tion, and not a strict command. This can not be maintained, because 
the Council of Trent uses the imperative mode. Therefore, Alex- 
ander VII (prop. 38 damnata) condemns any interpretation of the 
words of the Council that would destroy their imperative nature. 

The other false interpretation, condemned by the same Pontiff, 
says, "ilia particula quatn primum intelligitur, cum sacerdos suo tem- 
pore confitebitur." To put such a construction on the words of the 
Council, says Alexander VII, would be to make the law ridiculous, 
"praeceptum esset derisorium." 

Quam primum, therefore, means the same day or at least within 
three days after saying Mass, for the word is to be taken in a moral 
sense, as in all human laws. All theologians are agreed on this. If 
the priest must say Mass the following day, he is not permitted to 
put off his Confession for three days, but must make his Confession 
the same day, if he can possibly do so. 

3. From what has been said we conclude that Titius did not act 
rightly in the first instance, because there was a confessor at hand, 
to whom he should have gone to Confession. That the confessor was 
younger than Titius, and his nephew, made no difference under the 
circumstances. He was a "verus confessarius et, in casu, neces- 
sarius." The shame that Titius would experience in making his con- 
fession to his nephew was not a sufficient excuse, because more or 
less shame accompanies all confession of sin. 

In the second instance, Titius acted according to the laws of the 
Council of Trent, and, therefore, is not to be blamed. 

In the third and fourth instances he sinned. 









XXXIV. USING THE FORM FOR INFANT BAPTISM IN 

THE BAPTISM OF ADULTS. 

Cajus, a priest, received into the Church and baptized a woman 
convert. When asked by a brother-priest if he did not feel em- 
barrassed by the number and frequency of the prostrations and signs 
of the cross "super oculos, os et pectus" contained in the form 
for adult baptism, he replied that he had not used the form for adults, 
but had baptized the person with the form prescribed for the baptism 
of infants, by virtue of a general indult granted by the Holy See to 
all the bishops of the United States. When his fellow-priest denied 
that there existed any such general permission for the whole of the 
United States, Cajus appealed to "The Priests' New Ritual," re- 
cently published by the John Murphy Company, of Baltimore, with 
the "Imprimatur" of his Eminence Cardinal Gibbons, and to the 
Prayer Book, published by order of the third PI. Council of Balti- 
more, and approved by the Apostolic Delegate of the Council, in both 
of which books it is expressly stated that "by special permission of 
the Holy See, this form (i. e„ infant baptism) may be used in 
the United States for the baptism of adults." 

On the other hand, Cajus' fellow-priest appealed to Konings 
(II. 1,264) and to Sabetti (n. 666), where it is expressly denied that 
all the bishops of the United States have a general faculty to use 
the short form in baptizing adults. In their perplexity, now, both 
Cajus and his friend ask : Have the bishops of the United States a 
general permission from the Holy See to use the form for infant 
baptism in the baptism of adults ? 

As there seems to exist considerable confusion on this point, we 
take the liberty of giving a somewhat extended answer. 

139 







140 



THE CASUIST. 



On October 24, 1829, the bishops of the first Provincial Synod of 
Baltimore, i. e., the Archbishop of Baltimore, the Bishops of Bards- 
town, Charleston, Cincinnati, St. Louis, and Boston, and the Vicar 
Apostolic of Philadelphia petitioned Pius VIII to grant permission 
to the bishops of the United States to use the form for infant bap- 
tism in the baptism of adults. The reasons given by the bishops for 
their petition to the Holy See were that the form for adult baptism 
could not well be used in this country, because "caeremoniae quae- 
dam, ut prostrationes, signa crucfs super oculos, os et pectus, scanda- 
lum parere possent, quando speciatim puellae vel feminae erunt bap- 
tizandae." This request of the bishops was granted by the Cong, de 
P. F. October 16, 1830, "ad viginti annos" (Coll. Lac. T. III. col. 
34). Therefore, there was a general permission granted by the 
Holy See, up to the year 1850, to use, throughout the United States, 
the shorter form in the baptism of adults. 

In the year 1852, the bishops of the first PI. Council of Baltimore 
again petitioned the Holy See that this privilege be renewed, either 
"in perpetuum," or at least for another twenty years. The bishops' 
petition was as follows : "Quoniam gravissimae rationes a Patribus 
Concilii primi Baltimorensis Provincialis, a. s. 1829 allatae, dum a 
Smo. Patre peterent ut pro baptizandis adultis, ea in hisce Provinciis 
uti liceret forma quae in /Rituali Romano pro baptismate parvulorum 
invenitur, adhuc vigent, immo in dies graviores evasurae .videntur • 
statuunt Patres S. Sedi supplicandum esse ut privilegium tunc ad 
viginti annos juxta Patrum preces concessum, nunc perpetuum fiat, 
vel saltern ad viginti annos iterum concedatur." To this petition, the 
Cong, de P. F. answered, August 30, 1852, as follows: "Precibus 
istis relatis ab Emo. ac Revmo. D. Raphaele Cardinali Fornari in 
generali S. Congregationis conventu, habito die 30 Augusti, 1852, 
Emi. Patres censuerunt supplicandum SSmo. pro indulti proroga- 






USING INFANT BAPTISM FORM IN BAPTISM OF ADULTS. 141 

tione ad quinquennium, atque ita ut interim Episcopi paulatim ad 
observantiam ritus descripti pro adultorum baptismate in Rituali 
Romano accedere satagant." 

. By this decree, the privilege of using the short form throughout 
the United States was extended to the year 1857. 

In the year 1858, the second Provincial Council of St. Louis, there 
being present the Archbishop of St. Louis, the Bishops of Nashville, 
Milwaukee, Santa Fe, Alton, Dubuque, Chicago, and St. Paul, and 
the Vicar Apostolic of the Indian Territory, petitioned the Holy See, 
"ut in baptismo adultorum liceat uti forma in baptismo parvulorum 
adhibita, usque dum S. Sedes aliter statuerit." 

To this the Cong, de P. F. replied on February 6, 1859, "benigne 
annuit pro gratia juxta preces, et interim curent de inducenda form- 
ula pro adultis a Rituali Romano praescripta." 

By this decree there was granted to all the dioceses composing, in 
1859, the Province of St. Louis, the privilege of using the short 
form in adult baptism, "usque dum S. Sedes aliter statuerit." As 
the Holy See, up to the present, has not decreed otherwise, all the 
territory comprised in 1859 by the dioceses of St. Louis, Nashville, 
Milwaukee, Santa Fe, Alton, Dubuque, Chicago, St. Paul, and the 
Indian Territory, still enjoy the privilege of using the form for infant 
baptism in the baptism of adults. "Tale indultum, 6 February, 
1859, Provinciae S. Ludovici concessum est, adhuc vigens (donee 
revocetur) in omnibus dioecesibus, quas isto anno 1859, Provincia 
S. Ludovici comprehendebat" (Wapelhorst, Comp. Liturg. p. 413)- 
In the meantime the general permission for the whole of the 
United States to use the short form in baptizing adults expired with 
the year 1857, and except in cases where it was renewed to individual 
bishops, as in the case of the St. Louis Province, the bishops of the 
United States were obliged to use the long form in adult baptism. 






V x- 



142 



THE CASUIST. 



In the year 1866, the bishops of the second PI. Council of Balti- 
more petitioned the Holy See "ut privilegium, olim quibusdam hujus 
regionis Dioecesibus ad annum usque 1870 concessum, quo liceat pro 
adultis baptizandis formulam breviorem pro parvulis constitutam 
adhibere Summus Pontifex ad decern vel ad viginti annos omnibus 
extendere dignaretur." 

To this the Cong, de P. F., January 24, 1868, replied : "Porro S. 
Congregatio censuit Episcopos recurrere debere, expleto tempore 
postremae concessionis." That is to say, that in 1866, when the 
bishops petitioned the Holy See for an extension of this privilege, 
there were some dioceses which were enjoying the privilege, and 
the same would continue to enjoy it up to the year 1870, not by virtue 
of any general indult granted to all the bishops of the United States, 
but by reason of a special extension made to some individual bishops. 
The bishops of the Province of St. Louis, of course, were at this 
time enjoying this privilege, not only until the year 1870, but until 
revoked. 

O'Kane (Rubrics, n. 459) says: "In the United States of America 
until recently the ceremonies prescribed for infant baptism were 
used in the baptism of adults also, in virtue of faculties granted by 
the Holy See. In 1852 these faculties were renewed only for five 
years, with an intimation that they should not be again renewed; 
and accordingly since 1857, the American clergy are required to 
observe what is prescribed by the rubrics for adult baptism." What 
O'Kane says here is true, in this sense, that wherever, in the United 
States, since 1857, the form for infant baptism is used in the bap- 
tism of adults, it is used by virtue not of any general permission to 
all the bishops of the United States, but of a special indult obtained 
by individual bishops. Wherever no special permission has been 
obtained since 1857, the clergy are obliged to use the form for adults 



/ 



i 



_„ 






USING INFANT BAPTISM FORM IN BAPTISM OF ADULTS. 143 

in the baptism of adults. However, as it has been renewed since 
then in particular cases, as in the case of the St. Louis Province 
and the tenth Provincial Council of Baltimore, what O'Kane says 
is not strictly correct. 

O'Kane takes it for granted that after 1857, the permission would 
not be renewed to the American bishops, neither collectively nor in- 
dividually, on account of the intimation given by the Cong, de P. F. 
to that effect. In this, however, he was mistaken. In 1869 the 
bishops of the tenth Provincial Council of Baltimore petitioned the 
Holy See for an extension of the privilege "enixe, uno ore censuer- 
unt S. Sedi supplicandum esse pro extensione hujusmodi conces- 
sionis, ad decennium saltern, omnibus Provinciae Baltimorensis 
dioecesibus. ,, 

The Cong, de P. F. granted this, but not for ten years, but only 

for five. 

Outside the territory included, in 1859, by the Province of St. 
Louis, the solution of the question as to the privilege of using the 
short form for the baptism of adults depends on a question of fact. 
Have the respective bishops applied for and obtained an extension of 
this privilege ? The question is not easily answered. Father Smith 
(notes on second PI. Con. Bait. n. 214) has this to say: "To this 
question we can not return a satisfactory answer. In the diocese of 
Newark nothing definite is known by the clergy. The bishop may 
possess such a privilege, but the fact has never been communicated 
to the priests, and they are left to guess whether or not the faculty 
has been prolonged. The same, we are informed, is the case in 
various other dioceses. Hence a diversity of practice in this regard 
is gradually becoming prevalent. Some priests take it for granted 
that these privileges have been renewed again; others, however 
doubt this. The former, of course, use the ceremonies of infant bap- 




144 



THE CASUIST. 



tism, even in the baptism of adults ; the latter are not always con- 
sistent in the matter, some of them using the short form, others the 
long one. It would, therefore, seem desirable to have some positive 
measures adopted on this point by our prelates." 

As regards the case of Cajus, we answer that if he is located 
within the territory comprised, in 1859, by the Province of St. Louis, 
that is to say, if he is located in the archdioceses of St. Louis, Chi- 
cago, Milwaukee, St. Paul, Dubuque, or Santa Fe, or in the dioceses 
of Nashville, Alton, or the Indian Territory, or in any diocese that, 
since 1859, has sprung from the aforesaid dioceses, then he did right 
in using the short form for baptizing an adult. If he is located out- 
side that territory, he must inquire whether his bishop has obtained 
any special faculties in the matter. If his bishop has not obtained 
any special permission, or if Cajus can not establish the fact, he is 
obliged to observe the general law of the Church, which is to baptize 
adults with the rubrical form prescribed for the baptism of adults, 
unless he judge prudently that grave scandal might be given by its 
use, which may easily be, according to the Fathers of many Amer- 
ican Councils, "quando speciatim puellae vel feminae erunt bap- 
tizandae." 

The words of the Prayer Book, published by order of the third 
PI. Council of Baltimore, and of the "Priests' New Ritual," stating 
that the short form may be used throughout the United States, by 
general permission of the Holy See, should be changed, since they 
are not true. 






\ 



XXXV. MAY A CATHOLIC GIRL ACT AS BRIDESMAID 
AT A NON-CATHOLIC MARRIAGE? 

Bertha in Confession asks her confessor if it would be sinful for 
her to act as bridesmaid for her friend Stella, who is a Protestant, 
about to marry a Protestant, and in a Protestant church. The con- 
fessor replies that in his opinion Bertha would not sin, inasmuch as 
the contracting parties' action is not sinful, scl., marrying coram 
ministro ; and, since the contracting parties are the ministri, Bertha 
is only a witness to the contract, and, strictly speaking, does not 
take part in heretical services any more than the other friends pres- 
ent to see Stella married. The witnesses take no part actively in the 
religious ceremony — they are only passive witnesses to it. How- 
ever, the confessor advises Bertha that it is not expedient for her to 
act as bridesmaid, since it might possibly give scandal, and she prom- 
ises not to do so. 

Afterward, in discussing the case with some brother priests, the 
confessor is condemned for his opinion that Bertha would not sin; 
on the contrary, it is asserted that the confessor would have done 
wrong to give Bertha absolution in the event of her refusing to 
follow his advice. It was asserted that a case was referred to a 
certain seminary faculty, where a young lady wished to act as 
bridesmaid for Protestants; and it was alleged that a negative was 
given, and absolution forbidden if she did so. 

It was also stated that in Germany, in some dioceses, it would be 
excommunication to act as witnesses to a Protestant marriage. The 
confessor still maintains his opinion that absolution is not to be de- 
nied if the penitent persists in her design of acting. And he main- 
tains that as the other friends are not held in these parts to commit 

M5 



146 



THE CASUIST. 



any sin in going to the church to witness the wedding in pews, so 
Bertha, a more prominent witness, is taking no more real part in 
heretical worship than they in the body of the church. 

The principle which governs the solution of this case is the prin- 
ciple laid down by all theologians, that it is not lawful for Catholics 
to take part in a false worship. If acting as bridesmaid at a non- 
Catholic wedding in a non-Catholic church in this country is con- 
sidered a "communicatio in divinis," then it is not lawful for a 
Catholic to act in such capacity. If, however, acting as bridesmaid 
at a non-Catholic wedding in a non-Catholic church— in the United 
States— is not generally considered a "communicatio in divinis/' then 
it may be lawful for a Catholic to act as such, provided it does 
not become unlawful for some other reason, v. g., on account of the 
scandal it might occasion, or the danger of perversion, or because it 
has been forbidden by the statutes of the diocese. 

About the principle that it is not lawful for a Catholic to take part 
in a false worship, there is no dispute. The difficulty lies in de- 
termining whether the case before us comes under the principle. 

We do not deny that in a very special case it might be evidently 
unlawful for a Catholic to act as bridesmaid at a non-Catholic 
marriage, because such conduct could scarcely be viewed in any other 
light than as a "communicatio in divinis," owing to the distinctly 
religious coloring given to the ceremony by the religious opinions of 
the contracting parties and the officiating minister. But the case 
before us is this : Is the marriage of non-Catholics in this country, 
though performed by a minister and in a Protestant church, gen- 
erally looked upon as a religious rite, or is it considered merely as a 
civil contract? The mere fact that a marriage is performed by a 
minister of the Gospel, or in a Protestant church, does not make it 
a religious rite. It is made a religious rite by the beliefs and inten- 



ds 



MAY CATHOLICS ASSIST AT NON-CATHOLIC MARRIAGE/ 147 

tions of the contracting parties and the minister, as well as of the 
religious denomination to which they belong, and the view that the 
public takes of it. If these perform it as a religious rite, and view it 
as such, then indeed it becomes a religious rite, and consequently a 
false worship. If, however, they do not consider it or perform it as 
a religious rite, then the mere fact that it is performed by a preacher, 
or in a non-Catholic church, does not constitute it a religious rite. 
The question, therefore, is reduced to this : Are non-Catholic mar- 
riages in this country looked upon, either by the parties contracting 
them or by the religious denomination to which such parties belong, 
or by the community generally, as a religious rite ? 

To this question American theologians answer in the negative. 
Non-Catholic marriages in the United States, although performed by 
a minister in a Protestant church, are not looked upon, as a general 
rule, as anything else than a civil proceeding, a serious social contract. 

Archbishop Kenrick (Th. Mor. tr. XIII. n. 33) says: "Adstare 
nuptiarum celebrationi aestimatur plerumque obsequii erga sponsos 
indicium quin ritus heretici probentur." 

Father Konings (I. n. 254) says: 

"Idem dicit Kenrick, non esse peccatum, cum aliis de adstantibus 
nuptiarum coram haeretico praecone contractarum celebrationi, cum 
id plerumque non ut ritus haeretici approbatio aestimetur, sed ut 
obsequii erga sponsos indicium. Utrum vero idem dici possit de iis 
qui paranymphi (groomsman or bridesmaid) officio hac occasione 
funguntur, sapientioribus decidendum relinquo; multum hac in re 
tribuendum est communi aestimationi in populo vigenti ; quod enim, 
haereticorum ritu nullatenus participato, civile tantum obsequium 
censetur, falsae religionis professio haberi nequit." 

Father Sabetti, S.J., (Am. Eccl. Rev. June, 1890) says: "De 
assistentia matrimonio eadem danda est solutio; nam hujusmodi 



148 



THE CASUIST. 



actio apud nos reputatur ut merutn officium civile et signum amici- 
tiae. Nee circumstantia quod Veronica egerit partes principalis as- 
sistentis puellae (first bridesmaid), ullam facere debet difficultatem ; 
siquidem illae ad tale munus seligi solent quae ex una parte sunt ad 
illud implendum aptiores ratione aetatis et civilis conditionis, et ex 
alia majori amicitia et strictiori vinculo benevolentiae feruntur erga 
sponsam. Hoc autem ostendit hujusmodi officium juxta mores nos- 
tros non reputari religiosum, nee ullam importare cultus participa- 
tionem. ,, 

That the vast majority of non-Catholics in the United States look 
upon the marriage contract as a purely civil contract, possessing 
no sacramental or religious character, is a statement that hardly ad- 
mits of question. All legislation concerning it is handed over to the 
State, and the minister performing the ceremony considers himself 
as acting for and in the name of the State, and marries all persons, 
who are allowed by the State to contract marriage, whether they 
belong to his particular religious denomination or another, or to no 
denomination at all. He marries believers and unbelievers alike, 
baptized and unbaptized, only solicitous that they be authorized by 
the civil law to marry. "The fact that weddings are usually ratified 
in a church is due partially to a traditional instinct which retains the 
solemnity of a sacred function for an act regarded merely as a grave 
social and civil contract" (Am. Ecc. Rev., Vol. vi., p. 465). 

European theologians take a somewhat stricter view of this ques- 
tion, influenced, no doubt, by conditions of society obtaining in Europe. 

Thus Genicot, S.J. (I., n. 200), says: "Insuper abstinendum est 
ab iis functionibus, quae involvant sectae agnitionem, v. g., a munere 
testis, qui contractui matrimoniali auctoritatem concilit." 

Lehmkuhl (I. 295) says: "Ad nuptias vero vel sepulturam hetero- 
doxi accedere, quum pro honore civili tantum habeatur, communiter 



N . 



MAY CATHOLICS ASSIST AT NON-CATHOLIC MARRIAGE? 149 

licet. Tamen etiam in his actionibus attendendum est num adsit 
propter circumstantias scandalum, perversionis periculum, specialis 
prohibitio." 

Ballerini-Palmieri (n. 96) says : "An Catholicos licet adesse haer- 
eticorum nuptiis, quas haeretici celebrant valide quidem sed coram 
ministro haeretico et ritu haeretico? Distinguendum est inter eos 
qui simpliciter adsunt et eos qui testium munere fungentes auc- 
toritatem conciliant contractui. Hi enim communicant cum haereticis 
in eorum re sacra et implicite auctoritatem illius sectae ej usque min- 
istorum agnoscunt, quod, ut diximus, non licet." 

It may be interesting to quote an author of as long ago as Lugo, 
though times and conditions have undergone vast changes since his 
day. Lugo, in his tract on faith (no. 157), says about acting as 
groomsman or bridesmaid at a non-Catholic wedding : 

"Dubitari potest, tertio, an Catholicus non solum licite assistere 
possit nuptiis haereticorum, sed etiam in eisdem casibus paranymphi 
officio fungi, quando ad solemnitates adhibentur paranymphi, qui 
de more sponsos ad templa deducunt. Respondeo ex dictis, con- 
siderandum esse quale sit munus paranymphi, qui ab aliis pronubus 
vocatur, et ab antiquis auspex. Si ad eum solum pertineat tradere 
sponsam sponso, vel e contra postquam legitime conjuncti sunt, nihil 
apparet illicitum in eo munere, cum sit actio mere civilis. Si vero 
ejus munus sit quasi afferre sponsos ministro, ut eos conjungat, jam 
videtur habere participationem in ritibus, quibus minister haereticus 
eos conjungit et recurrere ad ipsum tamquam ad ministrum Ecclesiae, 
ej usque ministerium approbare, quod illicitum est." 

In the year 17 19, the Propaganda laid down the general rule for 
missionaries, "quod communicatio in divinis cum haereticis et schis- 
maticis, ut illicita regulariter habenda est in praxi, vel ob periculum 
perversionis in fide Catholica, vel ob periculum participationis in ritu 



i5° 



THE CASUIST. 



haeretico et schismatico, vel denique ob periculum et occasionem 

scandali." 

On May 10, 1770, the Congregation of the Holy Office answered, 
"Smus. decrevit Catholicis regulariter non licere haereticorum aut 
schismaticorum concionibus, baptismis matrimoniis interesse." 

We are inclined to think, therefore, that as far as the United States 
is concerned, non-Catholic weddings are not, as a rule, religious 
affairs, but rather mere civil contracts, and to assist at them or to act 
as groomsman or bridesmaid is not a "communicatio in divinis," 
and is not, therefore, on these grounds, unlawful for Catholics. In 
a given instance, as we have remarked above, a non-Catholic mar- 
riage may be a religious rite, and, in that case, it would not be lawful 
for Catholics to take part in them as groomsman or bridesmaid. 

But on other grounds it may be unlawful for Catholics to act as 
groomsman or bridesmaid at a non-Catholic wedding, namely, where 
such conduct would give scandal or create danger for the Catholic's 
faith, or where it has been forbidden by the diocesan authorities. 
And as these dangers may exist in any given case, each case should 
be considered on its own individual merits. 

Where there is a good reason for a Catholic girl, for instance, to 
act as bridesmaid at a non-Catholic wedding, and where the mar- 
riage ceremony can not be considered a sacred rite, and where no 
scandal is given and no risk taken for her faith, a priest in the 
United States is justified in permitting such a girl to take part in 
the wedding, and would scarcely act wisely in refusing her absolu- 
tion, if she would not promise not to take part. 

But where there is no serious reason for a Catholic girl to act as 
bridesmaid at such a marriage, and where she may decline without 
serious inconvenience to herself and to others, we think it the part 
of prudence for a confessor or pastor to induce her to decline. 



l 






XXXVI. WHERE SHOULD A NEW-BORN CHILD BE 

BAPTIZED? 

Titia, until her marriage a year ago, lived with her parents in the 
parish of N., where Cajus is pastor. Upon her marriage, she went 
to live with her husband in a neighboring parish, some twenty 
miles distant, and has lived there ever since. A few weeks ago, 
about to become a mother, she returned to her parents' home and 
there gave birth to a strong, healthy boy. The following day Titia's 
mother took the baby to Cajus, the parish priest of N., to have it 
baptized. Cajus at first demurred, thinking that the baby ought to 
be taken to the present pastor of Titia and her husband, and he did 
not wish to give cause for criticism. However, on second thought, 
he concluded to baptize the child, and to send the stipend to Titia's 
actual pastor. On another occasion, a girl who was brought up in 
a neighboring parish, where her parents still live, married a man 
from Cajus 1 parish and lives there at present with her husband. 
When she was about to be confined, she returned to her parents' 
home and was confined there, but had the child brought to Cajus 
to be baptized, as he was her parish priest at present, and she 
liked him better than the pastor of the town where she was confined. 
This child Cajus also baptized, because although born outside his 
parish, it belonged to his jurisdiction, since its parents had their 
actual domicile in his parish. Cajus' way of doing gave rise to con- 
siderable discussion among his brother priests,, some of whom de- 
fended him, while others censured him. In his dilemma, Cajus de- 
sires to know : 

1. Was he right in baptizing a child born within his parish, but 
whose parents have a fixed dwelling outside of the parish ? 

iS 1 



152 



THE CASUIST. 



2. Was he right in baptizing a child born outside his parish, but 
whose parents are his parishioners ? 

To the first question we answer yes. Cajus did right in bap- 
tizing the child born in his parish, although its parents had their 
domicile in another parish, and had no quasi domicile in his parish. 
St. Alphonsus, 1. 6, tr. 2, de Bap. n. 115, says : "Si mulier casu pariat 
in pago non suo, proles ab illius pagi parocho est baptizanda. 
Verumtamen, si pagus ille parum distet a pago proprio, v. g. duabus 
aut tribus horis, potest baptizari proles etiam in ecclesia sua." 

According to St. Alphonsus, therefore, the child has the privilege 
of being baptized wherever it is born. If it is not born in the parish 
of its parents, and if that parish is not far distant, for example, ten 
or twelve miles, then the child may be taken home to the parish 
priest of its parents to be baptized, but it need not be. In that case, 
both priests are parish priests "in ordine ad Baptismum." It is very 
easy to understand the reasons why a child ought to be bap- 
tized where it is born. If it had to be taken home to the parish 
where its parents reside, it would have to be separated from its 
mother for a long time, and at a most critical moment of its ex- 
istence, or else it would have to be deprived of the grace of Bap- 
tism until its mother is sufficiently recovered to accompany it, which 
would be several weeks at least, and sometimes longer, so that the 
child would be exposed to the danger of dying without Baptism. 
This latter, of course, is against the will and desire of the Church, 
which commands that the child be brought to Baptism as soon* as 
possible after its birth. It is always not only the privilege, but 
also the duty, of the pastor of the place where the child is born to 
baptize it if the child is taken to him, and he retains the stipend 
offered for the baptism as his own. If the parish of the child's 
parents is not too far distant, that is, if the child is exposed to no 



1 



1 



WHERE SHOULD A NEW-BORN CHILD BE BAPTIZED f 153 

risk by being taken back to its parents' parish to be baptized, then 
it may be taken there, but there is no obligation to do so. St. Alphon- 
sus limits the distance that the child may be carried to be baptized 
by its parents' pastor to ten or twelve miles. <■ 

The holy doctor lived, of course, when there were no railroads or 
other modern means of transportation, and ten or twelve miles in 
a stage coach or on foot was the measure of fatigue that a child 
could endure, and the time spent in making the journey the limit of 
time that a new-born babe might safely be separated from its mother. 
With modern methods of transportation, and the progress made 
in the artificial nursing of children, a new-born child might be car- 
ried much farther to-day than in the days of St. Alphonsus, and yet 
run no risk. Still, modern theologians follow St. Alphonsus in 
determining the distance that a child may be carried in order to have 
it baptized by the parish priest of its parents. 

Thus Genicot, II., n. 139: "Si mulier pariat in pago non suo, 
proles ab illius pagi parocho est baptizanda. Verumtamen, si pagus 
ille parum distet a pago proprio, e. g. tribus leucis, potest proles 
etiam ad ecclesiam suam deferri. ,, 

Bucceroni, S J., de Bapt. n. 422 : "In qua paroecia baptizari debeat 
infans, si parentes nee domicilium vel quasi-domicilium habeant, 
vel ab illo distent? Si mulier casu pariat in pago non suo, proles 
ab illius pagi parocho est baptizanda; verumtamen, si ille pagus 
parum distet a pago proprio, v. g. duabus aut tribus horis, potest 
baptizari proles etiam in ecclesia sua." . 

Lehmkuhl, II. n. 66 ad 3 : "Imo si mulier parit in loco non suo, 
infans baptizandus est a parocho loci, ubi peperit mater et decumbit, 
nisi forte aeque bene ad proprium parochum deferri possit ; imo si 
parochia patria non distat ultra 3 leucas, semper licet ad proprium 
parochum infantem deferre." 



154 



THE CASUIST. 



Kenrick, de Bapt. n. 14, Aertnys, C.SS.R., de Bapt n. 35, Konings, 
1258, etc., all repeat almost verbatim the words of St Alphonsus, 
who himself takes this opinion from the theologians who pre- 
ceded him, v. g., Croig, n. 275, Salmant. de Bapt. c. 4. p. 4, n. 58. 

Therefore, we conclude, that in the first instance Cajus did right 
in baptizing the child born in his parish, but whose parents lived in 
another parish. 

Cajus did right also in the second instance, namely, baptizing a 
child whose parents lived in his parish, but which was born in a 
neighboring parish. This is evident from the answer just given 
to the first question. In this second case, if the child had been born 
in a parish far distant from Cajus' parish, and he had been con- 
sulted beforehand, he should have advised the parents to have the 
child baptized where it was born, as, under ordinary circumstances, 
that would have been better for the child from every point of view, 
and more according to good order and the fitness of things. If, how- 
ever, the parents had not consulted him beforehand, but had re- 
turned home with the child and asked him to baptize it, he was per- 
fectly within his rights in baptizing it 



\ 












XXXVII. A RECENT PAPAL DISPENSATION "SUPER 
MATRIMONIO RATO ET NON CONSUMMATO." 

Miss A. R., twenty years of age, living in Linz, Austria, was 
married in 1894 to a Catholic young man, twenty-four years of age, 
in one of the parish churches of that city. After a wedding trip to 
Vienna, the young couple returned to Linz and took up their resi- 
dence there. From the start, the marriage had not been a very 
happy one. Though the couple had conjugal relations, still the 
marriage remained "non consummatum." The husband was fully 
aware of this fact, but the wife, being quite innocent and ignorant 
of the physiology of marriage, never realized that the marriage was 

not consummated. 

This continued for eight years. In the year 1902, the wife, in a 
confidential talk with a lady friend, expressed her regret that she 
had never been blessed with children, though she longed very much 
for them and prayed for them. From this lady the wife learned 
of the true state of affairs between herself and her husband. This 
friend's husband, a lawyer, hearing from his wife how things were 
going on between A. R. and her husband, suspected that there might 
be an impediment of impotency on the part of the husband, and 
persuaded A. R. to submit to a medical examination. The physician 
found that A. R. had never been violated, and that there was no , 
fault as far as she was concerned, because she was perfectly capable 
of consummating the marriage. 

Upon this testimony of the physician, the wife immediately be- 
gan proceedings in the civil court against her husband, with the 
view of being divorced, because there was a nullifying impediment 
of impotency from the start, and the civil law grants divorces for 
that cause. 

*55 










^ 



'56 



THE CASUIST. 



The court ordered two of its own physicians to examine the wife, 
and their testimony, under oath, agreed with the testimony of the 
first physician who examined A. R., namely, that she had never 
been exposed. On April 25, 1902, the civil court pronounced the 
marriage invalid, and authorized A. R. to contract a new marriage, if 
she so desired. 

On the advice of the physicians, the court would not affirm that 
there was an impediment of absolute impotency on the part of the 
husband, but it did affirm that the evidence left no room to doubt 
that there was an impediment of relative impotency proven against 
the husband. 

On being informed of the decision of the court, the husband ap- 
pealed the case. The court of appeal held that by continuing to 
live with her husband after she had learned of his impotency, she 
had forfeited her right to a divorce, under the act. The case was 
then taken to the highest court in the land, which sustained the 
findings of the first or lowest court, and granted a full divorce "a 
toro et a vinculo," on September 2, 1902. This ended the pro- 
ceedings, as far as the civil law was concerned. The marriage was 
declared null and void, and was ordered so entered in the marriage 
records of the parish church. 

In the same month of September, 1902, the now civilly divorced 
wife, A. R., appeared in the Bishop's court, in order to have her 
marriage annulled also by the Church authorities. 

The Church authorities, however, were not long in realizing that 
it would be very difficult to institute canonical proceedings to 
establish the original invalidity of the marriage, since the husband 
refused to appear in the Bishop's court, and wholly ignored the 
summons to do so. He said that, as far as he was concerned, the 
civil authority had annulled his marriage with A. R., and that was 



A RECENT PAPAL DISPENSATION. 



157 



quite sufficient. He considered any action by the Church authorities 
superfluous, and refused to aid in any manner whatsoever their 
proceedings. As there was no way of compelling him to appear 
and testify in the Bishop's court, the Church authorities were 
obliged to proceed without his testimony. The only way open to 
them seemed to be to procure a papal dispensation "super matrimonio 
rato et non consummato." This course appeared advisable, because, 
even though the husband had refused to appear or testify, the 
civil law had accepted the evidence submitted by the physicians 
as to the inviolated condition of the wife, and had pronounced the 
marriage invalid, even though the husband had not been examined. 
Accordingly, two physicians and seven witnesses (testimonium 
septimae manus) were placed under oath to examine the wife, while 
the wife herself was put under oath to testify. The wife gave 
the same testimony about her married experience that she had 
given in the civil court. The two physicians swore to her in- 
violated condition. The seven witnesses could say nothing about 
her married life, since she had never spoken to them about it, but 
they all declared that they knew her intimately, as they were her 
next of kin, and that she was a pious, pure, and truthful person. 
There was no testimony "septimae manus" concerning the hus- 
band, since no witnesses could be procured who knew him suffi- 
ciently well or intimately to justify them in giving witness in his 
case. As the plaintiff had urgently besought the Bishop's court to 
give a decision with all possible despatch, since she had no means 
of support, and must in the meantime look to her mother for as- 
sistance, who also was poor, the Bishop presumed the permission 
of the Holy See to institute a canonical trial "de matrimonio in- 
quirendo," which course was afterward approved by the Holy See. 
A full account of both trials, together with all the documents and 












i5» 



THE CASUIST. 



papers in the case, and the sworn testimony of the witnesses, was 
forwarded to the S. Congregation of the Council at Rome, Novem- 
ber i, 1902. The following reasons were urged why the Holy See 
should grant a dispensation in the case : 

1. The poverty of the petitioner, who had now the opportunity 
of contracting a new marriage, and thus providing for herself, 
whereas, if a new marriage were made unlawful for her, she would 
be obliged to go to work as a servant, or become a burden to her 
mother, who was without means to help her. 

2. The danger to which she would be exposed of losing her 
faith — a danger which was real and present, by marrying a non- 
Catholic, or contracting a civil marriage, which was her privilege 
under the civil law. 

3. It was further urged that there would be no "scandalum aut 
admiratio fidelium" to fear, since the decision of the civil court 
was already known, and a favorable rather than unfavorable decision 
was likewise expected from the Church authorities. 

All through the winter of 1902-3 private means were taken to 
urge the authorities in Rome to act with expedition, and finally, 
in the beginning of May, 1903, word was received that the case 
would come up for consideration in the session of the S. Congre- 
gatio Concilii on the 16th of May. And so it did. After a thor- 
ough investigation of the whole trial by a learned Canonist and the 
"Defensor vinculi," both of whom approved the finding of the 
court, the following Dubium was laid before the Sacred Congre- 
gation : 

"An sit consulendum SS. mo: pro dispensatione super matri- 
monio rato et non consummato in casu f 9 

The Congregation replied : 

"Praevia sanatione actorum (because authorization had not been 



A RECENT PAPAL DISPENSATION. 



159 






obtained beforehand by the Bishop's court from the Holy See to 
institute proceedings) affirmative ad cautelam." 

The Cardinal Perfect of the Sacred Congregation laid this reply 
of the Congregation before the Holy Father on the 18th of May, 
who then granted a dispensation "super matrimonio rato et non 
consummato." On June 8 following, A. R. contracted a new 
marriage with the approval and blessing of the Church. 

The case provoked no public criticism or comment of any kind, 
and was not even mentioned in the newspapers. In some private 
circles, especially in one sewing circle, considerable gossip was in- 
dulged in. But the fact that A. R., even after eight years of mar- 
ried life, was declared by competent physicians to have preserved 
herself inviolated, shamed busy tongues into silence. 

Had A. R. been rich instead of poor, much comment might have 
been occasioned as to the power of money to purchase dispensa- 
tions. 












XXXVIII. ARE BAPTIZED NON-CATHOLICS BOUND 

BY THE LAWS OF THE CHURCH? 

Miss X., a non-Catholic young lady, being convinced of the truth 
oi the Catholic Church, and desirous of becoming a Catholic, meets 
with so much opposition from her parents that she decides to post- 
pone her conversion until she reaches her majority. In the mean- 
time, however, she is in doubt as to the line of conduct she ought 
to follow in regard to hearing Mass on Sundays and abstaining 
from the use of flesh meat on Fridays and other days of abstinence. 
Being conscientious about the matter, she consults a priest as to 
her duty under the circumstances. The priest informs her that she 
will have to hear Mass on Sundays and holydays of obligation 
and abstain from meat on Fridays and other forbidden days, just as 
if she were already a Catholic. His reason for this decision is that 
baptized non-Catholics are subject to the laws of the Church just 
like Catholics. The disobedience of heretics does not destroy the 
jurisdiction of the Church over them, neither does the Church "de 
facto" exempt them from the observance of her laws. Therefore 
he concludes that Miss X. is obliged to keep the laws of the Church 
regarding the hearing of Mass oil Sundays and holydays of obliga- 
tion and abstaining from the use of flesh meat on Fridays and other 
days of abstinence. From this latter obligation, however, namely, 
the obligation of abstaining, the priest dispenses her, by virtue of the 
general faculties he holds from the bishop. 

Now it is asked: Is the position taken by the priest absolutely 
correct ? At first sight it might seem to be correct. However, upon 
examination, it will be found to be incorrect in some points, and 
in others only probably correct, and therefore not a sufficient basis 

160 






ARE BAPTIZED NON-CATHOLICS BOUND BY LAWS? 161 

i 

upon which to found a sure and certain obligation, binding in con- 
science. 

1. Practically speaking, before inquiring further into the duty of 
Miss X. in her present circumstances, we should first of all endeavor 
to establish the validity of her non-Catholic baptism. Was Miss X. 
ever validly baptized? Because if there is reasonable ground for 
doubting the validity of her non-Catholic baptism, then she was only 
probably baptized, and therefore probably also never subject to the 
laws of the Church. 

For although "in foro externo" those who have been doubtfully 
baptized are looked upon as having been validly baptized, as far as 
the obligations consequent on baptism are concerned, still this does 
not hold good "in foro interno," where there is question of an ob- 
ligation binding in conscience. 

2. If, however, there are no good grounds for questioning the 
validity of Miss X.'s non-Catholic baptism, then we find theologians 
divided as to her obligation to obey the laws of the Church before 
making her submission to the Church. 

Although there are very good theologians who hold that Miss X. 
is bound by the laws of the Church in the present circumstances, 
still there are other good theologians and canonists who contend 
that she is not bound by these laws. All the theologians are agreed 
that the Church's jurisdiction extends to all baptized persons, in- 
cluding heretics and schismatics, so that the Church may legislate 
even for baptized non-Catholics, though they be cut off from external 
communion with her. 

The only question which divides the theologians is this : Does the 
Church actually intend that all her laws shall be binding on all her 
baptized children, including heretics and schismatics? Or is there 
reasonable ground for distinguishing between some laws of the 



\ 







; 



l62 



THE CASUIST. 



Church and others, and saying that the Church desires that some 
of her laws should bind all alike, Catholics and non-Catholics, pro- 
vided they are baptized, and that others of her laws she makes 
binding on Catholics alone? 

The theologians who contend that all the Church's laws are 
binding on all baptized persons, advance the reason that it can not 
be the intention of the Church that her disobedient children should 
profit by their sin of heresy or schism by being exempted from laws 
that are binding on the faithful and obedient. 

The theologians who hold that not all laws of the Church are 
binding on heretics and schismatics, make the following distinction : 
Some laws of the Church aim directly at the removal of abuses, at 
promoting the public good and safeguarding Christian society, as, 
for instance, the laws concerning marriage impediments and others, 
which the Church has repeatedly declared to be binding on all bap- 
tized persons. Other laws of the Church aim directly at the sancti- 
fication of souls, as, for example, the laws of hearing Mass on Sun- 
days, and abstaining from flesh meat on Fridays, and these laws the 
Church does not wish to be binding on baptized non-Catholics, be- 
cause the only result of such an intention on the part of the Church 

would be to multiply sin. 

Thus De Angelis, Prael. jur. can. 1. I. tit. 2, n, 13, says that the 
whole question resolves itself into this : Does the Church wish to hold 
heretics and schismatics to her laws ? 

"Et si quid in hac materia liceat opinari, nostra mens est, eos 
maxime teneri illis legibus observandis, quae ad abusus compe- 
scendos, aut ad ordinem publicum et honestam conversationem tuen- 
dam in societate Christiana latae sunt, puta leges de impedimentis 
matrimonii, praesertim dirimentibus, aliaeque; namque plus semel 
Auctoritas Ecclesiastica requisita, expresse vel aequivalenter eos 









ARE BAPTIZED NON-CATHOLICS BOUND BY LAWS? 163 

teneri asseruit. Si vero sermo sit de aliis legibus ecclesiastics, quae 
ad sanctificationem personarum directe tendunt, eos ab Ecclesia 
non obligari est dicendum, cum Ecclesia perspiciat eos contumaciter 
resisturos, et hoc nihil aliud esset nisi multiplicare peccatum." 

Those who affirm that it is the Church's intention to hold even 
her rebellious children to all her laws appeal to the marriage legis- 
lation of the Church, which legislation Benedict XIV and Pius 
VII affirm to be binding on all baptized persons, because the Church 
has jurisdiction even over heretics and schismatics. But no one 
calls this general principle into question. The question is, Does the 
Church actually intend that every exercise of her jurisdiction should 
affect Catholics and non-Catholics alike ? Does she make some laws 
for Catholics only, and others for all baptized Christians ? We think 
that there are reasonable grounds for holding that the Church does 
not intend that laws like the law of hearing Mass on Sunday, and 
abstaining from the use of flesh meat on Friday, should be binding 
on baptized non-Catholics. Even from the law of clandestine mar- 
riage, the Church expressly exempted such heretics as had already 
set up a separate religious establishment, when the Tridentine decree 
"Tametsi" was promulgated in their territory. The opinions of 
the earlier post-Reformation theologians on this matter must be 
read in the light of the religious conditions prevailing in the world 

to-day. 

Thus the danger that de Lugo (de Poenit. disp. 15, n. 144) foresaw 
for Catholics, if the opinion exempting baptized non-Catholics from 
the observance of some laws of the Church prevailed, has entirely 
disappeared in our day. He thought that it would be holding out 
an inducement to weak Catholics to leave the Church in order to be 
freed from the obligations of her laws, "per hoc daretur ansa, ut 
multi malitiose se subtraherent a legum obligatione, ponendo se in 



^ 



164 



THE CASUIST. 



tali statu, in quo propter ipsorum perversitatem non crederentur 
observaturi legem et sic non intelligerentur obligari." 

3 It was a mistake to dispense Miss X. from the law of ab- 
stinence by virtue of Apostolic faculties. "In foro externo," Miss 
X is a heretic, and therefore cut off from the visible communion 
of the Church. The faculties granted by the Holy See may not 
be used in favor of any one outside the body of the Church. 

"Facultates applicari iis tantum possunt, qui per baptismum mem- 
bra Ecclesiae sunt nee earum incapaces redditi per poenam aliquam 
vel censuram, praesertim excommunicationem." Putzer, Com. in 
Facul. Apost. n. 46. • 



/ 



I •. 



XXXIX. A MIXED MARRIAGE IN A TOWN WHERE 

THE "TAMETSI" IS IN FORCE. 

Titius, a Protestant young man, and Caja, a Catholic young 
woman, both residents of New York City, joined a party of ex- 
cursionists on a trip to the Yellowstone Park in the summer of 
190J. While in Albuquerque, N. M., they were married by a 
Protestant minister. Some time after their return to New York 
Caja became uneasy about her marriage, and finally laid the matter 
before a priest. As clandestinity is not a diriment impediment to 
marriage in New York, the case was somewhat unusual, and at first 
sight perplexing. On one hand, it might appear that Titius, being 
a Protestant, is not bound by the laws of the Church regarding 
marriage, and therefore, neither is Caja "propter individuitatem 
contractus." Again, the priest recollects that some few years ago 
some new rulings were made by the Holy See in regard to clandes- 
tine marriages in the United States, making them valid in some 
cases where formerly they were doubtful; but just what was the 
import of these rulings he does not recall. On the other hand, he 
argues that all baptized persons are bound by the laws of the Church, 
otherwise a premium would be put on heresy. In this perplexity 
he takes the matter under consideration and comes to the following 

conclusion : 

There are two kinds of Church laws; some Church laws are 
made for the public good, for the promotion of the public welfare 
and the protection of society. These laws are binding on all bap- 
tized persons, whether Catholic or non-Catholic. Of such are the 
marriage laws of the Church, creating diriment impediments to 
marriage, v. g., the laws of consanguinity and affinity. There are 

165 









■ 
1 






1 66 



THE CASUIST. 



other laws of the Church which aim directly at the salification of 
the individual, v. g., the law of hearing Mass on Sunday, of ab- 
staining from flesh meat on Friday, etc., and these laws the Church 
does not wish to bind baptized non-Catholics, for such an intention 
on the part of the Church would only multiply sin.* Now, among 
the former laws, which the Church makes for the good of society, 
and not for the sanctification of the individual, is the law of clan- 
destinity in regard to marriage, and this law, therefore, the Church 
wishes to bind all baptized persons, whether Catholic or non-Cath- 
olic, except in cases where she expressly dispenses from it. That 
baptized non-Catholics are bound by the marriage laws of the 
Church is clearly set forth in the letter of Pope Benedict XIV 
to the Cardinal, Duke of York, February 9, I749> and has never 
been questioned by any theologian. Only where the Church issues 
a special dispensation from her marriage laws is a marriage of 
baptized persons valid, if the same is forbidden by a law of the 
Church under pain of invalidity. It makes no difference whether 
both parties to the marriage be Catholics, or both non-Cathol.cs or 
one Catholic and the other Protestant. Now we know that while 
the law of clandestinity does not create a diriment impediment to 
marriage between baptized persons in most parts of the United 
States, still there are some districts where it is in force, and where 
consequently, the marriage of baptized persons, unless contracted 
before the parish priest and two witnesses, is invalid. What these 
districts are we learn from the Fathers of the third plenary Council 
of Baltimore. In the year 1884 the Bishops of the Council sent to 
Pope Leo XIII a list of both the places in the United States, where 
the decree "Tametsi," of the Council of Trent, was binding, and of 
the places where it had never been published, and therefore was 
never in force. This list has not the force of a law, neither has it 

♦See Case xxxviii, page 160. 












A MIXED MARRIAGE WHERE "TAMETSI" IS IN FORCE. 167 

ever received the official endorsement of the Holy See, nevertheless 
it is of paramount authority, since it was compiled with great care 
by the bishops and theologians of the Council. According to this 
list, the decree "Tametsi," of the Council of Trent, making clandes- 
tinity a nullifying impediment to marriage between baptized persons, 
is in force in the following places in the United States : 

1. In the entire province of New Orleans. 2. In the province of 
San Francisco and in the State of Utah, except that part that lies 
east of the Colorado River. 3. In the province of Santa Fe, except 
that part of the State of Colorado that lies north of the Arkansas 
River. 4. In the diocese of Vincennes, Ind. 5- I« th e <#? of St - 
Louis, Mo., and in the villages of Ste. Genevieve, St. Ferdinand, and 
St. Charles, in the same State. 6. In the city of East St. Louis, 111., 
as also in the villages of Centerville Station, Prairie du Rocher, 
Cahokia, French Village, and Kaskaskia (which has recently been 
obliterated by the Mississippi River), in the diocese of Belleville, 111., 
now, but formerly in the older diocese of Alton, 111. 

In all other parts of the United States the "Tametsi" decree of 
the Council of Trent has not been published, and therefore clan- 
destinity does not constitute a diriment impediment to marriage 
between baptized persons. 

In all places, therefore, in the United States, where, according 
to the list of the bishops of the third plenary Council of Baltimore, 
the "Tametsi" is in force, the marriages of Catholics are invalid 
unless entered into before the parish priest and two witnesses. In 
all these districts the marriages of baptized non-Catholics would 
likewise be invalid, were it not for the fact that the dispensation 
of Pope Benedict XIV has been applied to them, removing the im- 
pediment of clandestinity in the case of non-Catholic marriages. 
But has the "declaratio Benedictina" been extended, for a cer- 



1 68 



THE CASUIST. 



tainty, to all the territory of the United States where the "Tametsi" 
is in force ? According to the Fathers of the third plenary Council 
of Baltimore, the "declaratio Benedictina," declaring valid the mar- 
riages of baptized non-Catholics, contracted in places where the 
"Tametsi" is in force, provided, of course, they be not invalid for 
some other reason, has been extended, for certain, to: I. The Arch- 
diocese of New Orleans, and to the dioceses of Natchitoches, 
Natchez, Little Rock, and Mobile, in the province of New Orleans. 
2. The province of San Francisco and the State of Utah. 3. The 
diocese of Vincennes, Ind. 4. The Archdiocese of St. Louis, Mo. 
5. The diocese of Belleville, 111. 

According to the same Council of Baltimore, the "declaratio Ben- 
edictina" has never been extended to the province of Santa Fe, N. M. 
Whether the "declaratio Benedictina" had ever been extended 
to Texas, i. e., to the dioceses of San Antonio, Galveston, and 
Brownsville, the bishops of the third plenary Council could not 
say for sure, and therefore, to remove the doubt, in the case of 
Texas, and to render the practice uniform for the whole country, 
the bishops of the United States, in 1884, petitioned the Holy See 
to extend the "declaratio Benedictina," not only to the dioceses of 
Texas, m case it had never been extended to them, but also to the 
province of Santa Fe. In reply to this petition of the bishops the 
Holy See, in November, 1885, agreed to extend the "declaratio 
Benedictina" to the dioceses of Texas, but not to the province of 
Santa Fe. Therefore the province of Santa Fe is the only territory, 
in the United States, where clandestinity operates as a nullifying 
impediment in the case of marriages of baptized non-Catholics. 

What is true of clandestine marriages of baptized non-Catholics, 
among themselves, is true also of clandestine mixed marriages. 
(Tanquerey, de Mat. n. 408.) 












i 



A MIXED MARRIAGE WHERE "TAMETSI" IS IN FORCE. 169 

The marriage of Titius and Caja took place at Albuquerque, N. M., 
in the province of Santa Fe. As the "declaratio Benedictina" has 
never been extended to that province, the marriage was subject to 
the law of clandestinity, which rendered ft null and void, because 
it was not contracted "coram parocho et duobus testibus." Had it 
been contracted in any other part of the country, where the "Ta- 
metsi" is in force, it would have been valid, on account of the dis- 
pensation of Benedict XIV. 

This law of clandestinity is both territorial and personal. In as 
far as it is territorial, it affects directly the territory where it has 
been published, and indirectly it affects or binds all those who 
dwell there, as well as those journeying through it, even though 
they have no domicile or quasi-domicile there. Thus, two Catholics 
of the archdiocese of New York, where the "Tametsi" is not in 
force, journeying through the province of New Orleans, where 
the "Tametsi" is in force, and while there, contracting a clandes- 
tine marriage, contract invalidly. Two baptized Protestants, how- 
ever, contracting marriage under the same circumstances, contract 
validly, on account of the "declaratio Benedictina." Their mar- 
riage however, would be invalid, if contracted in Santa Fe, for 
the papal dispensation removing the impediment of clandestinity 
for them in New Orleans has never been extended to the territory 

of Sante Fe. 

As far as the law of clandestinity is personal, it affects all bap- 
tized persons dwelling in the territory, in this way, that it forbids 
them to leave the territory and to go elsewhere, where the "Tametsi" 
is not in force, in order to get married clandestinely, that is "in 
fraudem legis," in order to cheat the law, without the sincere inten- 
tion of acquiring there a domicile or quasi-domicile. 

In 1886 the Holy See made a special ruling for the United States 






170 



THE CASUIST. 



in regard to the length of time required for acquiring a quasi- 
domicile "in ordine ad matrimonium." The general rule is that, 
in order to acquire a quasi-domicile, "in ordine ad matrimonium," 
a residence "per majorem anni partem" is required. That is, there 
must be a de facto residence and an intention of remaining there 
"per majorem anni partem." But since 1886, in the United States, 
a residence of one month outside of the territory governed by the 
"Tametsi" is all that is required to gain a legal residence in the eyes 
of the Church, for the purpose of marriage (Coll. P. F. n. 1413)- 

Therefore, Titius and Caja are not validly married, and besides 
Caja is excommunicated for appearing before a Protestant minister. 
She must first procure a dispensation from the excommunication, 
then a dispensation from the impediment "mixtae religionis," 
and after the non-Catholic party has made the necessary promises 
regarding the faith of the children issuing from the marriage, 
provided there is no other obstacle or impediment, Titius and Caja 
may be united in lawful wedlock. 



XL. A CASE OF RESTITUTION. 

Mr X was engaged, some years ago, in the wholesale dry goods 
business. The saying that "every business man fails at least once 
in his life," came true of him. He failed for $25,000, with assets 
amounting to about half that sum. His creditors were, first, several 
wholesale houses, to whom he owed $20,000 ; second, a friend, from 
whom he had borrowed $4,000 ; third, a dressmaker, to whom he 
owed about $1,000 for garments for his family. Mr. X, though a 
Catholic, had neglected the practice of his religion, but was, never- 
theless, in his business dealings an honest man. It was through no 
fault of his that he failed, and he turned over conscientiously to the 
receiver for his estate whatever he possessed in the nature of assets. 
When his affairs were finally settled, it was found that he was able to 
pay fifty cents on the dollar. This he paid and got a discharge from 
the court, under the bankruptcy laws, from all further liability for 

these debts. 

He went to work again, courageously, to retrieve his fortunes. By 

industry and economy, he has succeeded in laying by about $15,000. 
But now his health is broken and he is growing old, and is obliged to 
retire from business for good. He has nothing to depend on for the 
support of himself and his wife and an invalid child but this $15,- 
000 He has made up his mind to return to the practice of the faith, 
and this matter of his earlier failure disturbs him. He was discharged 
by the court from further liability, after paying fifty cents on the 
dollar at that time, because it was all he had wherewith to pay. Now 
he asks himself, Was that discharge of the court also a discharge in 
conscience? Did it wipe out, before God, his obligation of paying 
the other fifty cents out of his future acquisitions? Or did it only 

171 



172 



THE CASUIST. 



discharge his person, and leave his obligation to pay out of his future 
acquisitions in full force ? This is the question that he asks his con- 
fessor to settle for him, as it is now only a question of conscience. 

Solution. Theologians are agreed that a "cessio bonorum/' 
whether voluntary or ordered by the court, does not, of itself and 
independently of other considerations, relieve a debtor of the obliga- 
tion of making full payment of his debts out of his future acquisitions, 

if he be able to do so. 

Dr. Crolly, sometime professor in Maynooth College, and an 
authority of weight, contends that the intention of the insolvent laws 
of England is to wipe out the debt entirely, and that these laws must 
be considered just and equitable, and applicable in the court of con- 
science. (De just, et jure, vol. iii., n. 1232.) 

But Lehmkuhl takes exception to this contention of Dr. Crolly, 
and maintains that the insolvent laws of England or of any other 
country can not, of themselves, discharge the conscience of the debtor 
from further liability for his debts, unless other conditions are pres- 
ent, from which it may be gathered that the creditors renounce all 

future claims against him. 
And this opinion of Lehmkuhl is the opinion practically of all the 

theologians. (( 

A specific case, according to modern theologians, where a cessio 
bonorum," followed by a discharge of the court, operates in con- 
science also, and wipes out the obligation of future payment, is the 
case of wholesale and retail merchants, making a bona fide assign- 
ment in favor of their creditors. In this case it is not the discharge 
of the court that wipes out the debtor's liability in conscience, but it 
is the method of doing business prevailing to-day that makes it prob- 
able, if not altogether certain that there existed a tacit contract be- 
tween the retail and wholesale merchant that in case of a bona fide 



A CASE OF RESTITUTION. 



*73 



failure, the creditor would take the debtor's assets in payment for his 
debts, and renounce all further claims to be paid out of future ac- 
quisitions. 

Father Konings (Theol. Mor. i., n. 861) says that there are 
theologians to-day who think that the opinion of earlier writers on 
this matter must be abandoned, because of the new methods intro- 
duced into commercial transactions. Commerce to-day, they say, is 
conducted almost exclusively on a credit basis. The creditors fore- 
seeing that, among their numerous debtors, there will be some who 
will fail and who will be obliged, in consequence, to settle with them 
for a certain per cent on the dollar, charge a higher price for their 
goods, or a higher rate of interest for their money, in order to secure 
themselves against loss. It is tacitly understood among business 
men that if one of their number makes a bona fide assignment, his 
creditors take what is left and renounce all further claims against 
him. The insolvent laws, discharging the debtor from further lia- 
bility, are equally fair to all, beforehand. The benefit which A reaps 
under them to-day at the expense of B is reaped later on by B at the 
expense of A, or of some one else of their number. To all of this 
Konings replies: "Haec, quanti valeant, et utrum, saltern simul 
sumpta, opinionem illam probabilem efficiant, viderint sapientiores." 

We believe, with Konings and others, that it is not the intention 
of the insolvent laws of the United States, or of any other country, 
to discharge the conscience of the debtor from further liability. 
Although the civil law uses the words "forever discharged from all 
debts and claims," it takes no account of the conscience, and only 
means by these words that the creditors are forever denied any action 
in the future against a legally discharged debtor. 

Judge Kent (Commentaries on Am. Law, vol. I., n. 422) says, in 
regard to the value of insolvent laws: "The 'cessio bonorum' of 



; 



i74 



THE CASUIST. 



the Roman law, and which prevails at present in most parts of 
the continent of Europe, only exempted the person of the debtor 
from imprisonment. It did not release or discharge the debt, or 
exempt the future acquisitions of the debtor from execution of the 
debt. The English statute of George II, commonly called the lords' 
act, and the more recent English statutes of George III and George 
IVhave gone no further than to discharge the debtor's person ; and 
it may be laid down as the law of Germany, France, Holland, Scot- 
land, and England, etc., that insolvent laws are not more extensive 
in their operation than the 'cessio bonorum' of the civil law." 

Again in vol. ii., p. 39*, note, he says : "It was stated by the Chief 
Justice in giving the opinion of the Supreme Court of the United 
States, in Sturges vs. Crowninshield, 4, Wheaton, 122, that the 
insolvent laws of most of the States only discharge the person of 
the debtor and leave his obligation to pay out of his future acquisi- 
tions in full force. ,, These laws have been very materially changed, 
of course, since the days of Judge Kent, both in their purpose and 
nature, and are less concerned to-day than ever perhaps about the 
"forum internum," or court of conscience. 

Lehmkuhl's opinion, therefore, seems just and equitable, namely, 
that in a case of "cessio bonorum," the discharge of the court is not 
sufficient of itself to wipe out the conscientious obligation of paying 
the remainder of the debt out of future acquisitions. Other condi- 
tions must be present, from which it may be inferred, with at least 
reasonable probability, that the creditors renounce further claims 

against the debtor. 

The question remaining to be settled, therefore, is this : Are there, 
in reality, present in business transactions circumstances and condi- 
tions from which it may be gathered that business people enter into 
a tacit agreement to accept, in case of a bona fide failure, the assets 



A CASE OF RESTITUTION. 



175 



in full settlement for the debts owed them ? We think they do. We 
have reason to believe that this is the persuasion of conscientious and 
honorable business men, both Catholic and non-Catholic alike. Con- 
scientious and honorable business men, who feel a keen sense of duty 
to pay dollar for dollar for money borrowed or for work done for 
them, feel no such sense of duty to pay, later on, out of their future 
acquisitions, the remainder of their debt to, for instance, wholesale 
houses after a bona fide failure and a discharge in bankruptcy. A 
wholesale house, for example, is fully aware that among its many 
retail patrons, the number of failures, on an average, will reach 
such a figure every year. To secure themselves against this loss, 
among many other measures that they take, is this that they charge 
a higher price for their goods than they would otherwise charge, 
or be justified in charging, were there no bona fide as well as fraud- 
ulent failures. Thus, if A, a retail dealer, fails in business and makes 
an assignment in favor of his creditors, who are the wholesale houses, 
it is in reality A's fellow retail dealers purchasing from the same 
wholesale house who make good the amount that A is unable to pay 
by paying a higher price for their goods, in view of such failures 
as A's. This is true of most lines of business. For instance, insur- 
ance companies protect themselves against loss by fraudulent fires 
by charging a uniform higher rate for insurance than they would be 
justified in doing were there no fires of incendiary origin. The policy- 
holders all tacitly agree to pay more for insurance in order to pro- 
tect them against loss inflicted by some of their number. 

We do not see, therefore, how Mr. X can be obliged in conscience 
to pay in full out of his future acquisitions the debts he owed the 
wholesale firms. There seems to be a reasonable doubt of his obliga- 
tion to pay. And with such reasonable grounds for doubting whether 
Mr. X is bound in conscience, it would be unreasonable to impose 



r 






176 



THE CASUIST. 



such a burden on him. Of course, as Father Konings remarks, 
"certo certius, ut damnificatores formaliter injusti tenentur, qui 
culpa sua gravi in necessitatem illam, cedendi scil, bonis suis, vene- 

runt." 

We suppose that Mr. X has not failed through any grievous fault 
of his own ; and, moreover, that he has done all that he tacitly agreed 
to do, in the event of his bona fide failure, viz., he has turned over 
conscientiously all his assets for the benefits of his creditors. There- 
fore, being certainly discharged in person by the court, he is also 
probably discharged in conscience. 

It is quite different with Mr. X's other two creditors, namely, the 
man from whom he borrowed $4,000 and the dressmaker. With 
these he is obliged in conscience to settle in full out of his future 
earnings. For he had no such understanding with these as he had 
with those. The discharge of the cofcrt does not, of itself, discharge 
the conscience. There are no other conditions or circumstances 
present, however, on which a discharge in conscience might be 
argued, even with probability. Therefore, for these two latter debts 
Mr. X must in conscience settle from his future earnings. 

When he has done this his conscience may rest easy. Here again 
we must remark, with Lehmkuhl and Crolly, "id omnino requiri, 
ut ipse etiam prorsus secundum leges agat, neque minimum quid- 
quam in suum favorem sibi permittat, ultra id quod leges con- 
cedant." 



J 






XLI. INTERPELLATION IN THE CASUS APOSTOLL 

The Congregation of the Inquisition has given a dispensation 
from the interpellation demanded for the Pauline privilege, in con- 
nection with an interesting case proposed by an American bishop. 
The case is as follows : George, now fifty years old, and living in the 
diocese of the petitioning bishop, married Bertha, both being unbap- 
tized; as a result of this marriage they had four children, who are 
still living. Eight years later Bertha showed many indications of 
insanity, so that it became impossible to live with her, and she was 
committed to an asylum for the insane. / 

Six years afterward, as there was no hope of her recovering sanity, 
George obtained a decree from the civil courts adjudging his mar- 
riage null and void from the beginning on the grounds of the 
woman's insanity, which several physicians testified was caused by a 
hurt which she had received when only ten years of age. 

George, still unbaptized, then married Caroline, a baptized non- 
Catholic. He is still living with her ; they have had several children, 
of whom one is living. The insanity of Bertha has gone so far that 
she does not recognize her own daughter, and imagines that she 
herself is Queen Elizabeth. 

Now George (twenty-nine years after his first marriage, with 
Bertha, and fifteen years after his marriage with Caroline) has be- 
come a Catholic, together with his wife and whole family, with one 
exception ; and, therefore, he desires that the Holy See might, by its 
supreme power, grant him deliverance from the bonds of his mar- 
riage contracted in unbelief with Bertha. 

The fact that George was never baptized is clearly proven from the 
testimony of many altogether trustworthy witnesses, who have 

177 



i 7 S 



THE CASUIST. 



sworn that they often heard his mother say to her brother that 
George was not baptized, and how bad she felt about it. Besides, 
there is no record in the register of his baptism, though records of 
others baptized at the same time are found. 

The non-baptism of Bertha is not of equally absolute certainty, 
though there seems to be a moral certainty that she was never bap- 
tized. Her sister, who is eighteen years older than she, testified 
under oath that she was altogether certain that her sister was never 
baptized, because they did not believe in any religion, and never pro- 
fessed Christianity. 

Therefore, at the utmost there was between George and Bertha 
only a natural marriage contracted in infidelity; or, if Bertha were 
baptized, since George certainly was not, there was no marriage at 
all, on account of Disparitas Cultus. 

Follows the opinion of the Matrimonial Court of the diocese : It is 
decided that this Court has not legitimate jurisdiction to settle this 
case, but recourse must be had to the Holy Apostolic See for a final 
adjudication. But the court is strongly of opinion that the weight 
of testimony is in favor of the validity of the first marriage, on ac- 
count of the absence of baptism in both parties. 

But since George is now baptized a Catholic, he has the right to 
interpellate his first wife Bertha, and since there is no use in doing 
this on account of her insanity, this Court believes that a petition 
should be sent to the Holy See, that it may exercise its supreme 
apostolic power to dissolve the marriage contracted in infidelity be- 
tween George and Behha, so that George can make regular and valid 
his second marriage with Caroline. Hence the Court asks in their 
behalf the clemency of the Holy See, because they were married 
in good faith, and since their baptism they have lived as brother and 
sister, awaiting the decision of the Holy See. The Defensor Vinculi 



INTERPELLATION IN THE CASUS APOSTOLI. 



179 



subscribes to the opinion and petition of the Court. Accordingly, the 
bishop asks his Holiness for a dispensation from the interpellation 
to be made to Bertha, so that George may contract a lawful marriage 
with Caroline. 

The Congregation decided that his Holiness should be asked for 
a dispensation from the interpellation to be made to Bertha, so that 
George might contract matrimony validly with Caroline. This was 
granted December 10, 1903. 



XLII. DE DISPENSATIONS AB IMPEDIMENTO 

MIXTAE RELIGIONIS. 

The following Casus was proposed and solved in Rome, in the 

Apollinaris : 

Bertha, a Roman maiden, was on a pleasure trip through England 
with her father, a widower. After a month spent in visiting various 
parts of the country, she chanced to meet with Titius, a wealthy 
Protestant, resident of the place of their meeting. The latter, con- 
ceiving a strong affection for Bertha, asked her hand in marriage 
of her father, who was willing to grant the request, placing only one 
condition, to which Titius willingly assented, viz. : that he (Titius) 
would take up his abode in Rome, in order that the devoted father 
might not be separated from his only daughter. 

Bertha, however, remembered that there stood in" the way of the 
union the impedimentum mixtae religionis; nor did she lack the cour- 
age to speak of it. On the contrary, she promptly went with her 
father and Titius to submit the case to the bishop of the locality, 
who had faculties for dispensing from such an impediment. 

The bishop, being informed that Titius was willing to make the 
promises required by the Church, granted the dispensation and gave 
the necessary authorization to Caius, a priest, a friend of Bertha, to 
marry the couple. Caius, in order to please the latter, performs the 
ceremony in the chapel of a convent of which he is the chaplain ; and 
immediately afterward says the Mass of the day— not the Votive 
Mass pro sponso et sponsa. 

After this Titius wishes to appear before a minister of his own 
denomination and repeat the ceremony. Caius, being consulted by 
Bertha, says that this may be done, extra templum, and provided, 

1 80 



( 



DISPENSATIO AB IMPEDIMENTO MIXTAE RELIGIONIS. 181 

furthermore, that the minister uses no religious vestments or cere- 
monies, quia tunc deest ratio prohibitions, nempe communicatio cum 

haereticis in divinis. 

Bertha, following the decision of Caius, yields to the desire of 

Titius. 

1. Who can dispense jure proprio from the impediment mixtae 

religionis ? 

2. What about the action and decision of Caius in the case ? 

Ad Primum. — The impedimentum mixtae religionis, which has 
long existed in the Church, is a general law. Hence the Pope alone 
can dispense from it jure proprio. Bishops can not, since the follow- 
ing general principle here obtains : "The inferior has no power over 
the law of a superior. ,, This is confirmed by an instruction given by 
the Papal Secretary of State, November 15, 1858, in which it is ex- 
pressly said "ad quam (Apostolicam Sedem) unice spec tat potestas 
dispensandi super hujusmodi impedimento mixtae religionis/' 

While the bishop ex jure communi has the faculty — quasi-ordi- 
naria — of dispensing in the case of some other non-diriment impedi- 
ments, he does not enjoy that faculty in the case of the impediment 
here in question. Pius VII, in a Brief dated February 17, 1809, and 
addressed to the bishops of France, says that up to that time the 
Holy See had always refused to grant this faculty to bishops, es- 
pecially in Europe, though it had been asked for with the greatest 
importunity. Now, however, by special indult, but still with some 
reluctance, this faculty is granted, especially for those places where 
there are many heretical sects, and particularly for sparsely settled 
districts, either for a definite time, or for a determined number of 
cases, by the Congregation of the Holy Office or of the Propagation 

of the Faith. 
With regard to Caius, the priest who performed the ceremony in 



\) 



182 



THE CASUIST. 



the chapel of the convent of which he was chaplain, it can be said 
that his action was allowable, since it was not in a country where, 
as for instance, in Belgium, a more rigid discipline is enforced. 
From the context it also appears that he used for the ceremony the 
rite prescribed in the diocesan ritual. Neither can he be blamed for 
so doing, if we suppose that the bishop had approved for the diocese, 
or at least tolerated, that form of ceremony for mixed marriages 
generally. (According to the above-mentioned instruction of 1858.) 
But the celebration of Mass, even though it was not the votive pro 
sponso et sponsa, but the one of the day, can in no way be justified 
if, as seems probable, it could really in the circumstances be con- 
sidered as forming a part of the nuptial ceremony. If, however, it 
could not, and was celebrated after the ceremony merely to satisfy 
the devotion of the bride, it was allowable, especially as it took place 
in a private chapel. This would be the case if, for instance, the Mass 
at which the married couple assisted was the ordinary Mass cele- 
brated at that hour every day in the convent, and the chaplain had 
simply made arrangements so that on this occasion it was preceded 
by the marriage ceremony. In such a case the Mass could not be 
said to have been celebrated for the married couple— rather they 
were obliged to arrange matters so as to assist thereat, possibly with 
no slight inconvenience to themselves. Finally Caius, asked by 
Bertha if she might, in deference to the wishes of her husband, go 
with him to have the ceremony performed by a Protestant minister, 
replied that she might do so, provided it be not in a church and that 
no religious rites or vestments be used, "for," he added, "in that 
case the motive of the prohibition will be wanting, viz., comrnunica- 
tio in divinis cum haereticis" 

As to this point, it must be granted that some serious theologians 
and canonists take the same view as Caius, and for the same reason. 



DISPENSATIO AB IMPEDIMENTO MIXTAE RELIGION IS. 183 

Gasparri (de Matr. Vol. I. n. 467) gives that solution to the case 
exposed above. Supposing, for instance, that the minister in lay 
clothing, and not in a church, were to wish happiness, etc., to the 
married couple, recalling the rights and duties of the state of life 
upon which they had entered, without pretending to add thereby 
anything sacred to the marriage already performed, and supposing, 
of course, that the Catholic party does not look upon this as in any 
way a completion of the same, but simply as an act of complaisance 
toward the non-Catholic, whether the latter looked upon it as a 
sacred ceremony or not (Vechiotti III. Sec. 98). 

It is true, that it is not here question of a mere civil assistance, 
for the contracting parties go before a heterodox minister ad sacra 
deputatus, but, on the other hand, it is also true that no heretical 
religious ceremony is performed, and consequently no real com- 
municatio in divinis. However, care should be taken to avoid scandal, 
and this could be secured if the faithful were instructed as to the 
real motive and significance of the action of the couple in the cir- 
cumstances. 

Other theologians (v. g. Genicot II. n. 520) think that such an 
act could hardly be free from the appearance of at least an external 
adhesion to a heretical sect, and could not be allowed, since there 
would be an implied recognition of some religious authority in a 
non-Catholic minister. 

To me it seems that perchance the solution might depend upon 
the circumstances prevalent in various countries and places, in par- 
ticular upon the manner in which, according to received custom, 
such a procedure would be considered. 



* 



XLIII. SUDDEN SICK CALLS. 

Titus is hurriedly called to the bedside of a dying man, who desires 
very earnestly to see him. Taking the Blessed Sacrament and the 
holy oils, he hastens to the house of the sick man, only to learn that 
just as he crossed the threshold of the house the dying man had 
passed away. Having the Blessed Sacrament with him, Titus did 
not tarry longer, but returned immediately to the church. 

On another occasion, being summoned to a sick person, Titus, on 
entering the sick chamber, finds the patient just breathing his last. 
He quickly pronounces the words of absolution over him. But 
before he can administer Extreme Unction the pulse and heart have 
ceased to beat, and Titus, concluding that the man was dead, re- 
turned home without administering Extreme Unction. 

Reflecting on these cases, Titus makes up his mind that in the 
future, whenever he receives a sudden sick call, he will pronounce 
the words of absolution over the sick person when within twenty 
paces of the house, in order to be able to proceed to the administra- 
tion of Extreme Unction immediately on entering the sick chamber. 

Answer.— It is hardly necessary to say that a person who is cer- 
tainly dead can not receive any Sacrament, neither sacramental abso- 
lution, nor Extreme Unction. To absolve or anoint a person who, 
beyond doubt, is dead would be a sacrilege. It would be a grievous 
desecration of the Sacramental rite and a mortal sin. But if there 
be any reasonable grounds for doubting whether the person be really 
dead or not, then the priest not only may, but must administer, con- 
ditionally, of course, Sacramental Absolution and Extreme Unction. 
That a person is, in every case, really dead when he ceases to breathe 
is by no means certain according to expert medical testimony.* In 

*Cf. the chapter "The Moment of Death," in Sanford's Pastoral Medicine. 

184 






I 



SUDDEN SICK CALLS. 



185 



the case of normal death, where the person has been sick for some 
time and gradually sinking, only a few moments, at most, will inter- 
vene between the cessation of respiration and actual death. But in 
cases of sudden and violent death, as, for instance, drowning, as- 
phyxiation, etc., the last visible sign of life may have disappeared 
long before death occurs. 

Dr. Gourand, a well-known Parisian physician, with large hospital 
experience, writing in the "Bulletin de la societe medicale de S. Luc, 
S. Come, S. Damian, ,, 1895, says, apropos of the question of admin- 
istering the last Sacraments, that it is physiologically wrong to con- 
clude that actual death has occurred because respiration has ceased. 
It used to be thought, he says, that when the breathing had ceased 
the heart action also had ceased, and, therefore, that death had 
occurred. It is comparatively easy to verify the cessation of breath- 
ing, but difficult to determine just when the heart has finally ceased 
to act. "It is incontestable," he continues, "that a person who, after 
a long agony, ceases to breathe is, in most cases, dead. But, physi- 
ologically, he is not dead because respiration has ceased, but because 
the cessation of breathing follows, as a consequence, upon the cessa- 
tion of the action of the heart." In regard to cases where respiration 
has ceased before the action of the heart has been stilled, he says : 
"Between the last breath and the final cessation of the heart's action 
there is often an interval, whose length is determined by the greater 
or lesser vitality of the cardiac ganglion." 

Dr. Capellmann (Pastoral Medicine, Agony) says: "After the 
last respiration the person is considered dead, although perhaps 
sometimes minutes elapse before the vital spark becomes completely 
extinct, the muscles of the heart and of the arteries make, often 
after the last respiration, some, though feeble, movements. If the 
agony and the gradual fading away have been observed, we may be 







i86 



THE CASUIST. 



convinced of death some minutes after the last respiration. How- 
ever, there are some forms of death wherein doubts may be enter- 
tained whether death has really taken place." In other cases, as for 
example, cases of drowning, asphyxiation, great loss of blood, etc., 
hours may elapse between apparent and real death, or between ap- 
parent death and resuscitation. 

Father Tanquerey, de Poenit, p. 247, says : "Ex recentibus experi- 
mentis constat vitam per aliquod tempus in corpore manere, etiam 
quando quis ultimum suspirium edere visus est, quia vita non nisi 
successive a corpore recedit. Hinc quandoque qui apparenter mortui 
erant, post tres horas rhythmico linguae tractu, ad vitam reducti 
sunt. Quapropter absolvi et inungi possunt, positis ponendis, ii qui 
tali processu, quaedam signa vitae, saltern sensitivae, praebent; imo 
sub conditione 'si tu es vivus' ii qui quamvis mortui esse videantur, 
juxta ordinaria signa, prudenter a peritis supervivere putantur." 

In the light of all this, therefore, we can not endorse uncondition- 
ally Titus' method of administering the last Sacraments. 

As regards the first case, although the sick person was dying for 
some time and gradually faded away, and although the attendants 
had noticed the cessation of respiration, nevertheless Titus could 
not affirm with certainty that life did not linger still in the heart and 
nerve centers, for at least the few moments that were required to 
reach the sick-chamber from the main entrance of the house. On 
entering the sick-room, therefore, Titus should have immediately 
pronounced the words of absolution, with the condition "si tu es 
capax." As regards the administration of Extreme Unction in this 
case, so much time would be required before the Sacrament could 
be given that there would scarcely be any reasonable grounds for 
not concluding that death had occurred before the Sacrament could 
be administered. 



SUDDEN SICK CALLS. 



187 






Were this a case of sudden or violent death, like drowning or 
asphyxiation, etc., Titus should have administered Extreme Unction 
also, because there was a reasonable probability that life might not 
be altogether extinct. 

In case a physician were present and would not affirm with cer- 
tainty that death had already occurred, Titus would be justified and 
even bound to administer Extreme Unction. And if considerable 
time were required to discover probable signs of life or death, Titus 
should proceed immediately to administer Extreme Unction, using 
the shortest valid form, without waiting for any further examination 
of the patient, because every moment of delay may prove fatal. 

In the second case, Titus did well to give conditional absolution. 
Had he had the holy oils ready, he could have given Extreme Unction 
immediately after pronouncing the words of absolution, because there 
was sufficient reason for doubting whether life really became extinct 
with the last respiration. At least there was a probability that a 
spark of life might still remain in the body, and therefore sufficient 
warrant for giving conditional Extreme Unction, although there 
would be no sufficient warrant under Ihe circumstances for admin- 
istering the Holy Viaticum. 

The resolution that Titus took in consequence of these cases, of 
always imparting conditional absolution when within twenty paces 
of the house of the sick person, can not be approved of ; rather, it 
must be condemned. In order to be absolved, the penitent must be 
morally present to the confessor ; and although St. Alphonsus says 
that if the penitent be no farther than twenty paces distant from the 
confessor he is morally present and may be absolved, the holy doctor 
means that both the confessor and the penitent must be in the same 
room or hall, and must perceive one another by sight or hearing. 
Even a greater distance than twenty paces would not render the 






\ 






i88 




THE CASUIST. 



absolution certainly invalid, although it would jeopardize it. But 
if the priest be separated from the penitent by a house or a street, or 
if the penitent occupy a room in the house altogether unknown to the 
priest, there can be no question of moral presence. In fact, even 
under circumstances where the absolution "in distantiam" would be 
most likely valid, the confessor would not be justified in adminis- 
tering it always and on all occasions in that way, but only in cases 
where, unless he administered it in that way, he would not be able 
perhaps to administer it at all. It is not to be taken for granted that 
every time the priest receives a sudden urgent sick call it will be 
necessary to give conditional absolution before reaching the bedside 
of the dying person. On the contrary, it is to be taken for granted, 
as a rule, that the priest will be summoned in ample time to ad- 
minister the last Sacraments to the dying with dignity and decorum. 
The faithful are to be reminded repeatedly, when necessary, that 
they should summon the priest in good time. And the priest, on 
being called to the sick, should not delay in hastening to them. 
Exceptional accidental cases must be left to the providence of God. 



V 



* 



XLIV. CONFESSION OF A DYING PERSON. 

Titia, who is thought to be near death, but nevertheless is quite 
sanae mentis, although of very weak memory, is not able to remem- 
ber any sin, while trying to make her Confession to Cajus, her con- 
fessor. To all questions put to her by her confessor, in his endeavor 
to discover materia absolutions, she answers: "I can not recollect 
any sin, not even from my past life." But she desires very much 
to be absolved, and to receive the Holy Viaticum and Extreme Unc- 
tion. As there would evidently be danger in delay, Cajus accedes to 
her wishes, and absolves her, afterward giving her Holy Communion 

and anointing her. 

Quaeritur.— Did Cajus do right? Or should he have absolved 
her on the explicit condition, "Si peccata commisisti?" 

Solution.— I. Principles.— Material integrity is not always re- 
quired for a good Confession. Formal integrity is always required ; 
that is, as complete a Confession of mortal sins as is morally possible 
for the penitent at the moment of Confession. Very often this for- 
mal integrity is the only integrity possible, and therefore the only 
integrity required for a good and sufficient Confession. The Coun- 
cil of Trent, in the 5th chapter of the 14th session, speaks of the 
integrity required for a good Confession, and meets the objection 
of the Reformers that Confession as required by the Church is an 
impossible thing. Following are the words of the Council : "Con- 
stat enim, nihil aliud in ecclesia a poenitentibus exigi quam ut post- 
quam quisque diligentius se excusserit et conscientiae suae sinus 
omnes et latebras exploraverit, ea peccata confiteatur, quibus se 
Dominum et Deum suum mortaliter offendisse meminerit. Reliqua 
autem peccata, quae diligenter cogitanti non occurrunt, in univer- 

189 



s 



T90 



THE CASUIST. 



CONFESSION OF A DYING PERSON. 



191 



sum eadem confessione inclusa esse intelliguntur, pro quibus fideliter 
cum propheta dicimis: Ab occultis meis munda me." The reason 
of this, of course, lies in the fact that Almighty God does not re- 
quire anything impossible of us. The Confession is formaliter in- 
tegra, when the penitent is honestly minded to confess all mortal sins, 
according to their number and their kind and the circumstances that 
change their nature, and does his best to make as full a Confession 
as he can, although for some reason, beyond his control, v. g., oblivio 
inculpabilis, he does not make a materialiter Integra confession. Only, 
it is required of him that when the obstacle to a materially complete 
Confession is removed, he must make his Confession materialiter in- 
tegra. Pope Alexander VII., September 24, 1665, condemned the 
following proposition : "Peccata in confessione omissa seu oblita ob 
instans periculum vitae aut ob aliam causam, non tenemur in sequenti 
confessione exprimere. ,, 

Further it must be remarked that no difficulty intrinsic to Con- 
fession, inherent in its very nature, as for instance, the shame or 
confusion experienced in confessing our sins, is ever a sufficient 
reason for making a materially incomplete Confession. For since 
our blessed Lord has ordained that we must confess all mortal sins 
to his lawfully ordained representatives on earth, therefore he has 
also ordained that we must take upon ourselves whatever hard- 
ships are inseparable from such Confession, which hardships may 
serve as a penance for sin, and are very wholesome and salutary for 
the penitent. Thus the shame and confusion that a. penitent may 
feel while confessing his sins, or the hardships that we are known 
personally to the confessor and that there may be a falling off in 
his esteem for us, would be no excuse for making an incomplete Con- 
fession. For were such reasons sufficient to justify an incomplete 
Confession, then the faithful would easily persuade themselves that 



they were justified in making an incomplete Confession, and this di- 
vine ordinance would fail, to a large degree, of its purpose, or, as 
Gury expresses it : "Ratio est quia confessio ex natura sua est essen- 
tialiter laboriosa ac proinde si difficultas gravis, v. g., magna repug- 
nantia aut verecundia, ab integritate excusaret, plerumque ab accu- 
sandis mortalibus excusarentur fideles et proinde rueret ex maxima 
parte institutio sacramenti Poenitentiae. Praeteria Ecclesia non 
posset reservare crimina atrocia, quia id incommodum non leve poen- 
itentibus creat" (II. n. 497). Neither would the great number of 
penitents excuse one from the material integrity required in the Con- 
fession, "concursus magnus poenitentium non excusat," v. g., on 
a great feast day, or the occasion of a plenary indulgence during a 
jubilee. Pope Innocent XI, on March 2, 1679, condemned the 
following proposition: "Licet sacramentaliter absolvere dimidiate 
tantum confessos ratione magni concursus poenitentium, qualis, v. g., 
potest contingere in die magnae alicujus festivitatis aut indulgen- 
ce." That confessor would be guilty of sacrilegious conduct, in- 
deed, who, on the occasion of a great crowd of penitents, would dis- 
pense them from the obligation of making a materialiter Integra 
Confession, and would grant absolution after the Confession of one 
or another mortal sin. Any handbook of moral theology may be 
consulted on this matter. 

II. Application of Principles.— In the case, as stated above, Titia 
is conscious, in a general way, that she is guilty of sin, and in this 
conviction she accuses herself, giving evidence of a contrite heart, 
and praying to be absolved. That she confesses no sin in particular 
arises from the fact that her memory is weak, and perhaps also 
from want of sufficient religious instruction, but it has not its reason 
in any false shame or sinful negligence. For it not seldom happens 
that many are so uninstructed, and of such poor intellectual parts, 



192 



THE CASUIST. 



that, although they know in a general way that they have sinned, 
and express true sorrow for their sins, they nevertheless are unable to 
recall any sin in particular. This class of penitents is not to be 
confounded with another class, namely, those penitents that imagine 
they have no sins, because they are blinded by self-conceit. We 
argue, therefore, that in the present case, Titia has made a formal- 
tier Integra Confession, in as far as she gives evidence of true con- 
trition for her sins, and by praying to be absolved makes a Con- 
fession of her sins in as far as it is possible for her under the present 
circumstances. "Ad impossibile nemo tenetur" must be applied in 
this case. She does the best she can, considering her condition, 
and that is all that is required of her. 

Tappehorn, in his able work on the Sacrament of Penance, says : 
"If the particular sin can not be remembered or confessed, it will 
suffice to indicate its species ; if this is impossible, it is sufficient to 
confess that one has sinned mortally, although one can not remember 
or confess in what particular way." The confessor, therefore, ought 
to absolve Titia unconditionally. "Absolvi potest et debet, et quidem 
absolute, quilibet moribundus, qui aliquo modo, voce vel signo, con- 
fitetur vel absolutionem petit. Ratio est quia adsunt omnia requisita 
ad Sacramentum et ad confessionem formaliter integram." (Gury, 

II, n. 505; St. Lig. n. 408.) 

The expressed wish to be absolved contains in itself a Confession 
that one has sinned. If now the confessor, in imparting absolution, 
adds the condition, "si peccata commisisti," then he sets at naught 
the penitent's Confession, and in this he is not justified. 



v 



XLV. MARKS OF FRIENDSHIP TOWARD AN ENEMY. 

r 

John Smith, a wealthy and prominent Catholic, accuses himself 
in Confession of being on very bad terms with one of his children. 
It appears that one of Mr. Smith's sons, a young man of rather 
unsteady habits, married, over a year ago, a vaudeville actress, a 
non-Catholic, and from all accounts a young woman of Bohemian 
antecedents and proclivities. As Mr. Smith and his whole family 
were very much opposed to this marriage, and did all in their power 
to stop it, but to no purpose, they feel very much grieved by it, and 
refuse to have anything to do with the young man or his wife. Mr. 
Smith has cut the young man off in his will, has forbidden him his 
house, recently refused to allow him to be present at the parents' 
golden wedding, although all the other relatives were present; re- 
fuses to recognize the young man either in public or in private, to 
return his salutations or to permit any advances to be made toward 
a reconciliation, either by the young man himself, or by his friends. 

Quaeritur: Is Mr. Smith's conduct justifiable before God, or is it 
sinful ? 

Principles : This case comes under the heading "de amore inimi- 
corum." The law of charity imposes a twofold obligation on us in 
regard to our enemy. First, we must not wish him evil ; second, we 
must wish him well. 

First: We must not wish our enemy evil; that is, we must not 
repay evil with evil, nor cherish a spirit of revenge toward him. 
We must pardon the personal offense when requested, not always 
immediately. Sometimes there may be just cause for deferring 
pardon in order to manifest the pain we suffer by reason of the 
offense. Sometimes, even, we may be obliged to make the first ad- 



r\ 



J 93 



. 



194 



THE CASUIST. 



vance toward a reconciliation, to prevent scandal or to save our 
enemy from sin, when we can do so without much trouble to our- 
selves. 

> Second: We must wish our enemy well; that is, we must include 
him in our prayers. We must succor him in his needs, as we would 
any one else. And if we exercise charity indiscriminately toward 
a large number, we must not exclude our enemy, for this would be 
a mark of revenge ; and if special ties of blood, etc., unite us, we are 
bound to give such evidence of good will toward our enemy as 
we give to others who are bound to us by the same ties. But special 
marks of friendship that we owe to no one in particular, either by 
reason of their personal condition or the customs of the country, we 
are not obliged to show to our enemy. 

Here we must remark that it is one thing to harbor a spirit of 
revenge, and quite another thing to desire the reparation of outraged 
rights. It is perfectly legitimate to desire the restoration of our 
good name, or the restitution of our stolen property, and to take 
action at law to obtain them; yes, even to take criminal proceed- 
ings against the offender to have him punished. If this is done out 
of love for justice, it is quite in keeping with the law of charity. 
If it is done from a spirit of revenge, it is, of course, sinful. Once 
satisfaction has been made, we must forgive the personal offense. 
Until satisfaction has been made, this is not required of us. 

Regarding the question of saluting those who have grievously 
offended us, the doctrine of St. Ligouri, Tamburini, Mazotta, and 
others may be summed up as follows : We are not obliged to salute 
those who have wrongly offended us, unless they make the first ad- 
vances, unless it be question of a superior, or unless to refrain 
from saluting our enemy for a long time could be interpreted as a 
mark of hatred. But if our enemy greets us first, we are bound to 



MARKS OF FRIENDSHIP TOWARD AN ENEMY. 



195 



greet him in return, except once or again we might be justified in 
refusing to recognize a greeting in order to show our feelings 
have been hurt. In a word, the omission of the ordinary greetings 
and marks of good will that pass among men must be taken, some- 
times on account of circumstances, not as a sign of hatred or re- 
venge, but as a "manifestatio justi moeroris tantum." If, therefore, 
on account of the circumstances, the denial for a time of the ordinary 
salutations and greetings must be interpreted as a manifestation of 
wounded feelings, and if in fact the denial proceeds from no spirit 
of hatred or ill will, such denial is not sinful. If, however, under 
the circumstances, the denial of the ordinary marks of good will 
must be interpreted as a sign of hatred or revenge, "pro manifesta- 
tion vindictae et inimicitiae, ,f then such denial is sinful, even though 
it do not arise from feelings of hatred or revenge. 

Application of principles : Mr. Smith's son had become his enemy. 
He had given his father just cause for feeling hurt and outraged. 
He had done his father and his family a grievous wrong. Although 
an enemy, we must not forget the special ties of blood that unite 
them. Was Mr. Smith's conduct toward his son justified in every 
instance ? We must take each separate count by itself. 

First, Mr. Smith cuts off his son in his will. Is this act "contra 
justitiam" or only "contra charitatem" or wholly blameless? 
Whether this cutting off of children by parents in their wills be con- 
trary to the virtue of strict justice does not appear. Some theo- 
logians think it is ; others that it is not. Fr. Genicot thinks that it is 
not. Fr. Lehmkuhl thinks that it is. Genicot says : "Nee putaverim 
graviter peccaturum parentum qui, absque justa causa, uni filio prae 
aliis faveret, ut opinatur Lehmk." (I. n. 677), 

"Si quis ex odio vellet solam legitimam (portionem) filiis relin- 
quere, vel fratres non indigentes omino praeterire, is sub gravi 



196 



THE CASUIST. 



obligandus esset ut hoc odium deponeret, hortandus tentum ut illis 
aliquid amplius relinqueret; nam utitur jure suo" (ibid.). 

Lehmkuhl thinks that where there is no "clara et justa causa," 
parents sin against justice in preferring some children to others 
(I. n. 1155). 

De Lugo thinks that it is not against justice : "Quare moribundum 
fratribus nolentem aliquid relinquere vel filiis non nisi legitimam, 
cogere debet confessarius, ad deponendum odium, si forte ex odio 
vel vindicta moveatur, hortari etiam, ut eis consulat ; non tamen ideo 
negare debet absolutionem nolenti, si non sit talis gradus necessi- 
tatis, in quo debeat personis adeo sibi conjunctis subvenire" (disp. 

24. n. 175). 

Mr. Smith's action, therefore, in cutting off his son, is not evi- 
dently against justice. Is it against charity? If it is prompted by 
hatred or revenge, it is and grievously so. If it is not prompted by 
hatred, but by the fear that the son may abuse his inheritance, it is 
not. The laws of this country leave the father free in bequeathing 
his goods to his children. In this case the evidence favors the father. 
The son's past history promises poorly for the future. The son 
will, in all likelihood, be the better for being disinherited. The 
father's act, therefore, can hardly be interpreted as evidently against 
charity. Still it were much wiser if the father made some provision 
for his son, an annual allowance that could not be abused. In regard 
to forbidding the young man his house, we must distinguish. If the 
young man has reformed or is trying to reform, Mr. Smith may for- 
bid him his house for a time, to give expression to his outraged feel- 
ings. But a year is certainly a safe limit. The young man has a 
home of his own now, and no longer the same claim on his father's 
house. Still, to continue to refuse him admission savors of hatred 
and revenge, and the father must desist under pain of being denied 



MARKS OF FRIENDSHIP TOWARD AN ENEMY. 



197 



absolution. As long as the son refuses to reform, the father is not 
obliged to receive him. 

That Mr. Smith refused to invite the son to his golden wedding 
may have been simply a measure of prudence. The son's presence 
would very likely have caused trouble, recriminations, and perhaps 
a general scandal ; certainly if his wife were to attend. 

If, however, the young man and his wife had both turned over a 
new leaf, this would have been an excellent occasion for bringing 
about a good understanding, and unless serious difficulties were 
apprehended, Mr. Smith could hardly have refused them an invita- 
tion without committing sin. 

The same is to be said about Mr. Smith's refusal to recognize his 
son in public or in private. If the son continues in an evil course, 
Mr. Smith may continue to give expression to his sorrow by refus- 
ing to recognize him. If the son has reformed, Mr. Smith is obliged 
in conscience to recognize him. He may refrain for a time, say for 
a few months, from recognizing the son, but to continue to do so 
must be interpreted in the light of hatred or revenge. And his con- 
tinued refusal to return his son's greetings or to open the way for a 
reconciliation renders Mr. Smith unworthy of absolution. It seems 
evident from the case that Mr. Smith is of a stern character, and 
no more should be required of him than is absolutely necessary. But 
what is required by the law of God should be insisted on with 
great firmness, because a man of this character easily deceives him- 
self by believing his conduct to be prompted by a love of righteous- 
ness and justice, whereas it is prompted by a spirit of animosity and 
revenge. 



CONCEALING THE REAL VALUE OF AN OBJECT. j 99 



XLVI. THE OBLIGATION OF RESTITUTION, ARIS- 
ING FROM CONCEALING THE REAL VALUE 
OF AN OBJECT AND THEREBY DEPRE- 
CIATING ITS PRICE. 

Mr. A. is a dealer in works of art and antiques. Once a year, or 
oftener, he makes a business trip to Europe, to purchase a new supply 
of goods. He is an expert in the business, and knows to a nicety 
what an article of this kind is worth, and what price it will bring in 
the American market. Now, it often happens that Mr. A., in order 
to purchase some article at a bargain, conceals its true value from 
the owner, often insisting that it has very little or no value, and thus 
succeeds in purchasing for a trifle, pieces that he knows are worth 
a great deal, and which he afterward disposes of for many times the 
price he paid for them. In this way he is making considerable 
money, but sometimes has misgivings about his methods of making 
it. What judgment, from the view-point of good morals, are we 
to form of Mr. A.'s business methods? 

Mr. A. is certainly bound to restitution, provided his conduct in 
the purchase of goods is really deceiving and unjust. Whether his 
conduct is really such in each and every instance, will appear from 
the following considerations, as also the extent of his obligation to 
make restitution. -, 

i. Mr. A. conceals from the owner of the piece of furniture or art 
its true value, which it possesses by reason of its age or workman- 
ship, etc. He simply remains silent about it. He is careful to drop 
no remark that might arouse suspicions in the owner as to its real 
worth. Now we ask, Is Mr. A. bound in conscience, in every in- 
stance, to enlighten the owner of a work of art as to its real value ? 
Fr. Lehmkuhl (I. 1120) has this to say on the subject: "Pretium 

198 



conventionale . . . admitti potest in rebus quae apud Vetera- 
mentarios existunt, modo ne dolose et f raudulenter procedatur : quare 
si inter res viles detegitur res pretiosa, videndum est, utrum singu- 
laris sit notitia emptoris, an communiter qui viderint illam rem, earn 
pro pretiosa habeant, adeoque potius singularis sit venditoris aut 
paucorum imperitorum inscitia. Si posterius obtinet, vilissimum 
pretium non censetur justum ; si prius, non injustum censetur. Quare 
facile admittitur, ut vetustos libros, etsi detegam, eos esse magni 
valoris, si modo doloso non agam, viliore pretio mihi comparare 
possim." That is to say, if the purchaser's knowledge, in this par- 
ticular business, is altogether exceptional, he may profit by it. If the 
purchaser's knowledge is not exceptional, but the ignorance of the 
owner of the work of art, etc., is quite unusual, then the purchaser 
may not profit by his knowledge, because what he profits by, then, 
is in reality not his own knowledge, but his neighbor's exceptional 

ignorance. 

This is also the view of Fr. Noldin, S.J., professor of moral 
theology in the University of Innsbruck. Dealing with the same case, 
which we give above, he says: "Si unus contrahentium verum rei 
valorem cognoscit, alter ignorat, ita distinguendum est; venditio 
injusta est, si verus rei valor facile ab omnibus peritis cognoscitur; 
venditio autem justa est, quando verus rei valor solum ab emptore 
ob singularem ejus peritiam detegitur." And he gives the reason as 
follows : "Ratio primi est, quia pretium vulgare, quod communiter 
a peritis determinatur, majus est. Ratio secundi est, quia res com- 
muniter non pluris aestimatur" (The. Mor. II., n. 589). 

If Mr. A., therefore, ob singularem ejus peritiam, being an ex- 
pert, alone knows the value of the object, and he leaves the owner 
of it in ignorance of its real value, and thus succeeds in buying it 
for little or nothing, only to sell it later on for a very handsome 



200 



THE CASUIST. 



CONCEALING THE REAL VALUE OF AN OBJECT. 201 



price, he does not commit any injustice against the owner. Because, 
under these circumstances, the object has little or no value for the 
owner, since the value put upon it by those versed in such matters 
is very small. Mr. A. is not responsible for the ignorance of the 
owner. He did not deceive the owner into offering the object for a 
very small price, and can not be considered, therefore, the causa 
efficax of the lucrum cessans, which the owner might have enjoyed 
if he had known the article's true value. Therefore, Mr. A. is not 
bound to restitution for this part of his conduct. 

2. But how stands the case with regard to the rest of Mr. A/s 
business methods? Mr. A. not only conceals the true value of the 
goods he intends purchasing, by observing a profound silence, but 
he positively contributes to lead the owner into error, in order to 
profit by it. Can we also, in this case, maintain that Mr. A.'s conduct 
is not a causa efficax damni, and, therefore, does not create an obliga- 
tion to restore ? Even here we can excuse Mr. A. from the obligation 
of restitution if what he did amounts to nothing more than an effort, 
common to all barter, to purchase goods as cheaply as possible. That 
is called a trick of trade, and in itself does not constitute an act of 
injustice, even though a less experienced seller might sometimes be 
induced by it to sell an article cheaper that he would otherwise have 
sold it, provided the price paid may still be considered a jus turn 
pretium. 

St. Alphonsus says : "Hinc etiam advertendum, quod communiter 
non praestatur fides mendaciis vendentium, dum satis noscuntur, 
haec esse communia stratagemata ; unde ipsi regulariter non tenentur, 
ob id ad restitutionem, ut Salm. etc. Dixi : regulariter, quia si 
aliquando venditor certe animadverteret emptorem mendaciis credere 
et ideo majoris emere, tunc quidem ab injustitia is non est excu- 
sandus" (Theol. Mor. iv., n. 805). 



What the Holy Doctor says here of the seller who by false exag- 
gerations endeavors to deceive the purchaser, and thus receive a 
higher price for his goods, we may apply to the case of the pur- 
chaser who, by false representations, induces the owner of a work of 
art, for instance, to part with it at a price far below the lowest pre- 
Hum justum. In this case Mr. A. can scarcely be excused from the 
obligation of making restitution. By false and unjust representa- 
tions, he procures an article at a price far below any actual value it 
possesses. His profit can not be ascribed, in this case, to any excep- 
tional knowledge he possesses, but only to his mendacious representa- 
tions. He is, in fact, positively cheating his neighbor. "Ratio est, 
quia emptor (ut jam per se patet) non minus tenetur servare justi- 
tiam commutativam in contractu, quam venditor; ergo sicut vendi- 
tor non potest, salva conscientia, plus acceptare, quam justum pre- 
tium exigit, ita emptor non potest minus dare, quam limites justi 
pretii exigunt" (Elbel. vi., n. 179). 



t 



RESTITUTION TO A RAILROAD COMPANY. 



203 



XLVII. RESTITUTION TO A RAILROAD COMPANY. 

Titius, a traveling salesman, is more or less intimately acquainted 
with a number of conductors on the several railroads over which he 
travels on his business trips. Now, whenever he rides with one of 
these conductors, he does not pay the usual fare for the distance 
he travels, but instead he hands the conductor a dollar bill, which 
is much less than the fare, for which the conductor gives him no 
receipt, in order not to be obliged to turn it in to the company, but 
to keep it for himself. In this way Titius has defrauded the several 
railroads in the last few years, to the extent of several hundreds of 

dollars. 

Now, it is asked: 

1. What constitutes materia gravis, when stealing from a cor- 
poration ? 

2. When do small thefts coalesce, and create a grave obligation 

to restore ? 

3. Did Titius commit a mortal sin from the start, or only after he 

had, de facto, taken a considerable sum ? 

4. Was he also responsible for what the conductors stole ? 

I. The good of society at large, as well as the good of the indi- 
vidual, require that the members of society shall enjoy complete 
security in the possession of their earthly goods. Unless peace and 
concord reign among the individual members of a state, civilized life 
would become impossible. But the peace and concord required to 
make life tolerable would be impossible were the individual mem- 
bers of society free to steal from one another. And all human society 
would fail of its purpose were property rights not inviolable, be- 
cause the greatest if not the only inducement held out by society to 

202 



its members to promote industry and to encourage sustained labor 
and effort is precisely the security that the state guarantees to its 
citizens in the possession of the fruits of their labor. 

The stealing, therefore, from a private individual of a sum suffi- 
cient to jeopardize the peace and concord that should reign among 
private members of society in the possession of their property, and 
which would therefore cause grievous injury to the individual, will 
constitute a materia gravis, and be forbidden under pain of mortal 

sin. 

Now, although the amount stolen from very rich persons and 
from great corporations may not do the said persons or corporations 
a grave damage, and therefore might seem to be a venial sin only, 
nevertheless the security of property, which must necessarily obtain 
in every civilized state, requires that the stealing of a considerable 
sum, even from a corporation, shall constitute a grave transgres- 
sion. For if the stealing of a considerable sum from very rich per- 
sons or from large corporations were only a minor misdemeanor and 
a venial sin, these thefts would multiply rapidly, as, for instance, the 
adulteration of goods, the falsification of weights and measures, the 
defrauding of insurance companies, railroad corporations, State 
treasuries, etc., and thus incalculable injury would be done to society 
at large by destroying the confidence and trust and good faith on 
which commerce and trade and business enterprise of every kind 
depend. An amount must be fixed, therefore, to exceed which will 
be always and in all cases a grave transgression and a mortal sin, 
no matter from whom it is stolen, because a grave injury is thereby 
done to the security of the State and the interests of its citizens. 

To fix this amount in dollars and cents is one of the difficult tasks 
of moralists. To say, in a general way, that whenever the amount 
stolen, although not inflicting a serious injury on the individual 



) 






204 



THE CASUIST. 



owners of, say, a railroad, still is sufficient to place in jeopardy the 
peaceful possession of property and render the State insecure, it is a 
materia gravis and a mortal sin, does not help much to a solution of 
the difficulty. For when we come to estimate in money the amount 
of damage that constitutes a materia gravis, we discover an ingens 
auctorum dissensio. The authorities on this matter are agreed that 
when the sum stolen belonged to a number of owners, all consti- 
tuting one moral body, as, for example, a railroad company, the 
sum must be absolute gravis, that is, the sum taken must not nec- 
essarily inflict a grievous injury on the individual holders of stock 
in any particular company directly, but only on the State directly 
by rendering property insecure, and through the State indirectly 
on the stockholders. 

But what the materia gravis amounts to, when estimated in 
money, is difficult to determine with precision. One reason for 
this difficulty is the fluctuating value of money, or the varying pur- 
chasing power of money throughout any given period of time, as is 
apparent from the history of money in the United States and Eu- 
rope for the last century. It is estimated by skilful economists that 
the purchasing power of money has suffered a decline of from 30 
to 40 per cent, in the last one hundred years. Another reason for 
this same difficulty is the difference in purchasing value of money in 
different countries at the same time. Thus the same amount of 
money will purchase less in the United States than it will in Europe, 
as American tourists know to their comfort. Thus the estimates 
given by moralists, as to what constitutes materia gravis in this mat- 
ter, depend largely on the time and the country in which they live. 
Father Konings, C.SS.R., who understood American conditions 
well, thinks that $10 constitutes a materia gravis when taken from 
very rich persons or great corporations. Father Tanquerey, S.S., 



RESTITUTION TO A RAILROAD COMPANY. 



205 



thinks that $7 or $8 is a materia gravis. Fathers Sabetti, S.J., and 
Lehmkuhl, S.J., think that $5 is a materia gravis. Palmieri, S.J., 
thinks that even for Europe 100 francs, or over $19, is required 
to constitute a materia gravis. His words are : "Audivi alios viros 
doctos, qui ob valde in dies imminutum pecuniae pretium, vellent 
nunc materiam absolute gravem earn esse, quae centum plus minus 
francos exaequet, quibus haud aegre assentimus. ,, (Ball. Pal., vol. 
1, n. 607.) 

From this opinion of Palmieri Father Genicot, S.J., dissents, and 
thinks that Palmieri exaggerates the decline in the purchasing power 
of money, and prefers to adhere to the generally accepted opinion 
of contemporaneous writers. We are inclined to think that Father 
Konings* opinion is just and reasonable, and that it is safe to say 
that $10 constitutes a materia gravis when stealing from a large 
corporation, like a railroad company. 

2. Small sums stolen by the same person, but at different times, 
may coalesce, either by reason of the thief's intention, from the very 
start, of stealing small sums until he acquires a large amount, or 
else, where there is no intention from the start of repeating the 
small thefts, but still they are repeated, as occasion offers, then the 
short space of time intervening between one small theft and another 
will bring them so closely together as to make them really one moral 
act, and that grievously injurious. If a sufficiently long interval 
elapse between one small theft and another, then the victim of them 
has ample time to recover from the injury done by one before 
another is inflicted, and therefore is not in the long run injured 
grievously. What this time limit in which these small thefts must 
follow one another in order to coalesce is, theologians are not 
agreed. Roncaglia thinks that these small thefts should not be sep- 
arated by more than two months in order to coalesce ; if they occur 



206 



THE CASUIST. 



at intervals longer than two months, they can not be said to coalesce 
and to inflict a grievous injury. St. Alphonsus indorses Roncaglia's 
opinion. Sometimes an interval of one month, or even less, is suffi- 
cient to prevent very small thefts from coalescing. This is the 
opinion of Ball. Palmieri (n. 78). 

A distinction must be made, however, between small thefts com- 
mitted against individuals and small thefts committed against large 
corporations. When small thefts are committed against a corpora- 
tion, they must amount to a sum half again as large as required to 
constitute a mortal sin if taken at one time from a corporation. Be- 
cause a corporation is less injured by ten small thefts, done at con- 
siderable intervals of time, even though they amount to a consider- 
able sum, than by the single theft of a considerable sum. Therefore, 
if $10 constitute a materia gravis if taken at one time from a cor- 
poration, $15 will be required to constitute a materia gravis if taken 
in small sums and at different times. 

3. Now, in regard to Titius, there seems to have been an inten- 
tion from the very start of stealing a considerable sum. If there 
was, then he committed a mortal sin when he first formed this in- 
tention, because the intention was graviter peccaminosa. A grave 
obligation to restore, however, did not arise for Titius until he had 
accumulated about $15. Although Titius, over and above the mor- 
tal sin he committed, when he formed the intention to defraud the 
railroad company, committed a new mortal sin each time that he 
stole a small sum, because he put into effective execution an inten- 
tion that was mortally sinful, still in ordine ad confessionem he 
commits one mortal sin by all these small thefts. 

4. Titius is also guilty of the sin of co-operation, being a party 
to the thefts that the conductors committed. He would be bound 
also, ex hoc capite, to make restitution of the sum the conductors 



RESTITUTION TO A RAILROAD COMPANY. 



207 



stole, but only secundo loco. Practically speaking, however, Titius 
will not only be quite ignorant of his duty in this respect, but it 
would be difficult to convince him of it, and still more difficult to 
persuade him to perform it. Therefore, it will be more prudent for 
the confessor to say nothing about this latter obligation, and simply 
to urge Titius to make restitution to the railroad company for what 
he himself took, leaving him in good faith as regards the rest. 



XLVIII. FRATERNAL CORRECTION. 



Titius, a young man of otherwise good parts, is becoming very 
much addicted, of late, to the use of strong drink. His friend 
Cajus, a young man of the same standing as Titius, perceives this 
growing habit with alarm, and considers seriously within himself 
what may be his conscientious duty in the case. Cajus has, on sev- 
eral occasions, taken Titius to task for his excessive drinking, but 
only in a mild way and with considerable hesitation. Titius' father, 
a good man, knows that he drinks, and many of Titius' young men 
friends know it. But they have neglected, up to the present, to 
remonstrate with him about it, and, in the meantime, the case is be- 
coming more and more aggravated. Cajus is beginning to have 
qualms of conscience about his duty of correcting Titius, under the 
circumstances. Is Cajus bound, under pain of mortal sin, to ad- 
monish and correct Titius, or may he leave the burden of correct- 
ing Titius to Titius' father and friends ? 

Solution. — Our Saviour imposes on us the precept of fraternal 
correction, when He says: "Si peccaverit in te frater tuus, corripe 
eum" (Matt, xviii.), charity demands of us that we rescue our 
neighbor from grievous evil whenever we can do so without serious 
inconvenience or damage to ourselves. There is no question here 
of obligations arising from justice or piety ; as, for instance, between 
pastor and people, or between parent and child. There is question 
here of an obligation arising from charity, as between private indi- 
viduals. Now drinking to excess is a grievous evil and a mortal 
sin, and although mortal sin can not be committed except by the 
free will and consent of the sinner, still, i, it may be difficult for 
the sinner to reform, if left to himself, either because he does not 

208 



FRATERNAL CORRECTION. 



209 



reflect, or does not realize his condition; 2, the sinner may be led 
into sin by reason of external causes, from which it may be very 
difficult for him to extricate himself, unless admonished and assisted 
by others. There is a graver obligation of saving our neighbor 
from mortal sin than there is of saving him from serious temporal 
loss into which he is plunging of his own free will. And yet we 
are bound, sometimes even under mortal sin, to save our neighbor 
from worldly loss, into which he is rushing knowingly and willingly, 
when we can do so, without serious damage to ourselves. By much 
the more reason, therefore, are we obliged to save our neighbor 
from serious spiritual injury. 

However, in order that there be created a grave obligation to 
correct our neighbor, the following conditions must exist: 1. We 
must be sure that our neighbor is committing grievous sin, or at 
least that he is in danger of committing it. 2. There must be little 
or no probability that our neighbor, if left to himself, will correct 
himself. 3. We must have hope of effecting some good by our 
correction. 4. There must be no one else more fit or equally fit to 
admonish, and who will, in fact, administer the admonition. 5. 
There must be no danger of our incurring any serious risk by 
reason of our admonitions. 

If these conditions are verified, then, from the very nature of the 
case, and according to the unanimous opinion of theologians, there 
arises a grave obligation of correcting our brother. 

However, even here, it must be observed, there is not so much 
question of correcting a past sin as of preventing a future sin ; that 
is to say, we are obliged to prevent our neighbor committing grave 
sin or repeating it, and we are obliged to prevent him remaining a 
long time in a state of spiritual damnation. Therefore it follows 
that we are not obliged to correct our brother as soon as he sins, not 



2IO 



THE CASUIST. 



only because, as a rule, the above conditions will not be verified but 
also because the sinner himself is not obliged to repent directly 
he has fallen, but may wait some time; and therefore neither are we 
obliged to admonish him immediately upon his fall. 

Now, on the other hand, there are circumstances which excuse 
us from the obligation of correcting our neighbor. 

1. If there is hope that our brother will rescue himself, in a short 
time, or that he will not fall again, our obligation ceases. 

2. If our correction would only make matters worse we are ex- 
cused from correcting, except where damage is being done to others 
or to religion, etc. 

3. If it be probable that parents or superiors will administer the 
correction, then those who are of equal standing with the sinner 
are released from the obligation. 

4. In like manner, if I can prudently judge that some one else, 
more fit than I, will admonish the delinquent, I am excused. 

It is rare that we are obliged to correct some one whom we do not 
know, because we can not judge what may be the result of our cor- 
rection. A private person, of easy-going nature or indolent disposi- 
tion or who is timid and backward, who thinks himself unfit to ad- 
minister a correction, and therefore omits it, but who is, never- 
theless, willing to act, if he thought it quite necessary or profitable, 
would commit a venial sin, by not correcting. Indeed, private per- 
sons are rarely obliged to administer a correction, unless they be 
more or less intimately acquainted, because it is rare that all the con- 
ditions creating a grave obligation are present. And seldom, if ever, 
is an inferior obliged to correct a superior. Scrupulous persons are, 
as a rule, exempt altogether from the obligation of administering fra- 
ternal correction, because they are incapable of distinguishing when 
there is an obligation to admonish and when there is none. More- 






FRATERNAL CORRECTION. 



211 



over, on account of their scrupulous nature, they would commit a 
great many imprudences and torment themselves beyond measure. 
As a rule, therefore, it is better that they should not correct others, 
except in extraordinary and very evident cases. 

Here we wish to lay stress on a point of considerable importance, 
in this matter, and that is that it is neither the duty nor the privilege 
of private individuals to pry into the lives of their neighbors, with 
a view to correcting them. All writers on this matter call attention 
to this point. Even superiors are admonished to be moderate and 
conservative in their scrutiny of the lives of those under them. We 
are obliged to administer a correction only in those cases that fall 
under our notice, without our seeking them. 

Let us now apply these remarks to the case in hand. 

1. If there is any hope at all that Titius' father or his other friends 
will administer the necessary correction, then Cajus is not obliged to 

do so. 

2. If there is only slight hope or likelihood that an admonition 
coming from Cajus will do any good, then there is no obligation to 
give it. 

3. If Cajus is scrupulous or overnervous or inclined to exaggerate, 
it were better that he abstain from correcting. 

4. If Cajus fears harm for himself or for those connected with 
him, resulting from the correction, as, v. g., enmities, loss of posi- 
tion, breaking of a marriage engagement, then he is not obliged 
to act. 

5. But if Cajus is a prudent man, whose admonitions will likely 
be heeded, and if he feels convinced that no one else will administer 
the necessary correction, and if he has nothing to fear from it, ex- 
cept that Titius may feel sore about it, etc., then Cajus is bound 
in conscience to administer a prudent, earnest, and charitable correc- 









. 



212 



THE CASUIST. 






tion to Titius, in order to save him from the great evil that is de- 
stroying him. Cajus must make it evident to Titius that he is 
acting, not from motives of fault-finding or recrimination or 
personal indignation, but in a spirit of true, disinterested Christian 
charity. 



j 



XLIX. A PASTOR'S WATCHFULNESS OVER HIS 

PEOPLE. 

Titius, a parish priest, is assiduous in giving good example to 
his people, in the administration of the Sacraments, in preaching the 
gospel; but beyond this his activity does not reach. He does not 
bother much about the individual members of his parish, seldom 
admonishes any of them privately, though he knows that some of 
them are living in sin and giving scandal, knows little about their 
homes or how they live, beyond what he hears in the confessional 
or picks up from casual conversations. He admits, of course, that 
if he did extend his activity a little more beyond the precincts of the 
parish church, he could accomplish more good; but he claims, at 
the same time, that he has no strict duty to do so. He contends that 
when he became a priest, he took on himself the obligation of lead- 
ing a priestly life and giving good example, of administering the 
Sacraments and of preaching the gospel to the people, and that with 
the accomplishment of this all grave obligation ceases. If he were 
obliged to do more, he claims, the life of a priest would become an 
intolerable burden. He regrets, at times, that he has not a little 
more of the "spirit of the saints" ; still the "spirit of the saints" 
is a spirit of heroism, and no man is obliged, "sub gravi," to practise 
heroism. And thus he argues himself into a feeling of security, 
"against the evil day." Is Titius' position really secure? 

Answer.— Although Titius does his duty with regard to giving 
good example, administering the Sacraments and preaching the 
gospel, nevertheless there will continue to be in the parish a certain 
number of people living in grievous sin, and giving grave scandal, 
openly or secretly, who are not reached or influenced by Titius' 

213 














214 



THE CASUIST. 



ministry. There will be some in the parish who seldom or never 
go to Mass, or to the Sacraments ; some who drink to excess ; some 
who live in hatred or dissensions; some who are ruining their 
children by bad example, by neglect, by indifference ; some who are 
being daily submerged by the temptations and difficulties which 

surround them. 

Now, although it is true that not even heroism on the part of the 
priest will remove all these sins and scandals, still their number 
may be greatly reduced in any parish by the timely warnings and ad- 
monitions of the pastor, given to individuals in private. And it is a 
part of a priest's office tp do this. If he neglect it, he has reason to 
fear the approach of almighty God : "If thou dost not speak to warn 
the wicked man from his way: that wicked man shall die in his 
iniquity, but I will require his blood at thy hand" (Ezech. xxxiii, 8). 

If you ask, at how great sacrifice must a pastor do this, the 
theologians answer, that although there are cases where a priest 
is bound to sacrifice even his life to save a soul from extreme danger 
of being damned, or to prevent very grave public scandal (the good 
shepherd giveth his life for his sheep), nevertheless the occasions 
are more or less rare that a priest will be obliged, at great sacrifice 
to himself, to administer private warnings and admonitions to in- 
dividual parishioners. If he were obliged to do so constantly or 
frequently, it would render the office of a priest so burdensome that 
conscientious men would be deterred from assuming it. Thus, for 
instance, De Lugo: "Neque enim tenetur superior, cum quolibet 
suo damno, inordinationes impedire : nee ad hoc gravissimum onus 
intendunt sese obligare, quando hujusmodi munera suscipiunt, sed 
ad rationabilem et prudentem vigilantiam et curam, quae propor- 
tionata debet esse, et major ad majora, et minor ad minus gravia 
praecavenda" (xiv. 133). 



A PASTOR'S WATCHFULNESS OVER HIS PEOPLE. 215 

I. The pastor is bound in duty to be vigilant and to make in- 
quiries, otherwise many evils will escape him, or only come to his 
knowledge when it is too late to remedy them. "Quae potest esse 
pastoris excusatio, si lupus oves comedit, et pastor nescit," writes 
St. Gregory. The pastor should know what children attend Cate- 
chism,, and what children do not. He ought to know who among 
his parishioners fail to make their Easter duty ; what schools the 
children attend ; what books and papers and magazines are to be 
found in their homes ; where the children are employed, especially 
the girls ; whether peace reigns in the family, or whether there be 
grievous quarreling or hatred and discord, intemperance and blas- 
pheming. 

But, some one may ask, ought Titius to make minute inquiries into 
the lives of his parishioners, in order to learn whether they are 
leading really moral, Christian lives? 

We answer, without hesitation, No; he should not. To oblige 
him to do so would be to make his office an intolerable burden, 
to torment him with scruples, and to make him detested by his 
people. The great theologian, Diana, says of this too close scrutiny 
of the private affairs of parishioners, that it begets scandal and 
hatred and dissensions. People will not tolerate that their private 
affairs be scrutinized by others, and such scrutiny, by its very nature, 
is damaging to the honor and esteem we owe our neighbor, and 
which all people desire should be shown them (Diana, vii. tr. 4, 

n. 25). 

Hence the theologians lay down the rule that the pastor is obliged, 
in conscience, to make some inquiries about his parishioners, but 
only in a general way ; except in some very particular case, where 
he has ample reason to suspect that something is seriously wrong 
and which he believes he can remedy. In this case he is in duty 










2l6 



THE CASUIST. 



bound to make a more minute but always prudent and cautious 
inquiry. We say prudent and cautious, because if prudence and 
caution are not used, then no good, but a great deal of harm, will 
be done. 

II. The confessional should never be made use of for the purpose 
of getting information concerning the parish. If it be used for this 
purpose, then people will come to Confession, not so much to tell 
their sins in a spirit of true penitence, as to rehearse the gossip and 
scandal of the parish. And many will refrain altogether from going 
to Confession, lest they be cross-questioned in this manner, or be 
thought by others to be scandal-mongers. 

III. Even outside of the confessional the pastor should be very 
slow to listen to any information from others, especially from his 
own servants or help. The only safe method for him to pursue, 
if he must ask others, is to ask some good, level-headed, godly man, 
who may have opportunities for knowing what is going on, and 
who will not exaggerate or falsify. 

IV. But what is the pastor to do if he finds that certain sins 
are quite common in the parish ? Should he administer private cor- 
rections and warnings to individuals ? No ; he should not. In such 
a case he should give the warnings and corrections in the Sunday 
school, or in his sermons from the altar. Scavini says : "Plerumque 
impossible est ut omnes singillatim corrigantur, cum nimius sit 
delinquentium numerus : quo in casu correctio prudenter fiat in cate- 
chesibus et publicis concionibus ,, (I., 452). 

V. In what cases, then, should private warnings be given to 
individuals ? It is difficult to say, precisely, in what cases the pastor 
should admonish individuals privately. By way of suggestion, we 
would say : 

(a) In case of public scandal, as when parishioners have gone 



A PASTOR'S WATCHFULNESS OVER HIS PEOPLE. 217 






to a non-Catholic minister, or civil magistrate, to be married ; con- 
ducting saloon business in a scandalous manner; young girls fre- 
quenting public dance halls, etc. 

(6) In case of scandal that is not public, if it be of a serious 
nature, as people living in concubinage, Catholic druggists selling 
immoral goods, dealers in immoral pictures, books, etc. 

(c) Where parents are very delinquent with regard to their 
children, not sending them to Catechism, exposing them to grave 
dangers without necessity. 

(d) Where a person has neglected his Easter duty, through care- 
lessness or indifference. 

(e) In cases of hatred or discord among members of a family. 

(/)In case of grave detraction, or other sin, committed in the 
presence of the pastor. 

In general, the rule may be laid down, that a pastor is bound to 
correct in private whenever all other means fail of result, and 
there is reason to believe that a warning or correction, administered 
in private, will do good. 

VI. As regards the manner of admonishing and warning people, 
in private, of their sins, the following suggestions are gleaned from 
the best theologians: 

(a) The pastor's own life ought to be without blame, ai& he ought 
to endeavor to make himself loved and esteemed by his people. 

(6) He ought to pray fervently to God that his warnings may be 
heeded. 

(c) He ought to base his admonitions on natural as well as 
supernatural grounds, especially when expostulating with persons 
who have little or no fear of God. 

(d) He ought to choose an opportune moment for reproving. 
Reproofs should not be given in the presence of others, unless it be 






2l8 



THE CASUIST. 



necessary, nor in such a way that friends or neighbors may suspect it. 

(e) The pastor must make it evident to the guilty party that he 
is acting solely for the temporal and eternal good of the sinner. He 
must speak earnestly but kindly, not vilifying the parishioner, but 
rather praising his good qualities, and expressing the confidence 
that he will not disappoint one's hopes in his regard. 

(f) Lastly, it may be better in some cases to work through others 
than to interfere personally. A judicious Catholic layman or woman, 
of good standing in the parish, may do more good in particular 
cases than a priest. 

With these remarks in mind, and they are gathered from the best 
sources, from St. Alphonsus, Cardinal De Lugo, Diana, Berardi, etc., 
the conclusion naturally follows that the position Titius has taken, 
regarding his duty toward his parishioners, is not fully justified by 
the teachings of sound theology. It is a great deal what Titius does, 
but it is not the whole law. To keep a prudent, cautious vigilance 
over individual parishioners, and to reprove in private, is not to 
practise heroism. To require of a pastor a constant and minute 
surveillance over the lives of his parishioners were indeed, as De 
Lugo admits, to render the office of the priest an intolerable burden, 
and to deter conscientious men from entering the priesthood; but 
to require of a pastor a reasonable and prudent watchfulness over 
the morals of his people . is neither contrary to the teachings of 
sound theology nor opposed to the dictates of sound sense. 



\ 



L. THE MEDICAL SECRET. 

A recent work on "Social Diseases and Marriage" (Prince A. 
Morrow, M.D.) quotes the following case: "The father of a young 
woman asks information relative to the health of a young man 
(your patient) who is engaged to his daughter. 'I wish to ask, 
under the seal of secrecy, certain details as to his malady. I beg 
you to say whether I can or can not accept him as a son-in-law. I 
hope that you will take into consideration the embarrassment of a 
father placed between the desire to give to his daughter the hus- 
band of her choice and the fear of the results the marriage may 
have, if the hints that have been given me are unfortunately true.' 
In the case given above should the physician, entrenching himself 
behind the Hippocratic oath and the proscriptions of the law, guard 
an absolute silence, or, only interrogating his conscience, should 
he make it the judge of the secret confided to him, to divulge it, or 
be silent, according to circumstances ?" 

Answer. — Secrets committed to professional men, v. g., physi- 
cians, lawyers, etc., by reason of their profession are known in 
theology as "secreta commissa rigorosa." They impose an obli- 
gation, arising from strict justice, ex stricta justitia, and, therefore, 
in a grave matter they bind under pain of mortal sin. They impose 
a graver obligation than "secreta naturalia" or "secreta promissa" 
These latter are binding, ordinarily, "ex fidelitate tantum." The 
"secretum commissum rigorosum" binds under circumstances 
where otherwise the secret would have to be revealed, because the 
good of the public demands that the secret be kept inviolate. And, 
therefore, even though a judge in a court of law or other superior 
should lawfully ask for information that would involve the betrayal 

219 










220 



THE CASUIST. 



THE MEDICAL SECRET. 



221 



of a "secretum commissumy it would not be right to answer, and 
if there were no other means of guarding the secret, the physician 
or lawyer, etc., may and must answer by a flat denial of any knowl- 
edge of the subject. Of course the laws of civilized countries pro- 
tect professional men in the keeping of professional secrets. In the 
work mentioned above the author quotes the opinions of a number 
of medical men, bearing on the case he cites, which it may be 
interesting to quote in this connection, as showing the attiude of 
the medicaf fraternity toward the duty of a physician to guard under 
any and all circumstances the medical secret. Dr. Langlebert, from 
whom the above case is cited, indicates the physician's duty in the 
circumstances as it appears to him as follows : He would answer the 
young woman's father, who wished to learn from him the condi- 
tion of health of his prospective son-in-law, thus : "I regret that I 
can not give the information you ask. The best you can do, if you 
intend to carry out this project of marriage, is to inform the young 
man of the warnings you have received, or have him come with you, 
or send me a writing by which he authorizes me without restric- 
tion to say whether he can or can not espouse your daughter." The 
physician ought to interdict all kinds of information as to the health 
of a patient on the occasion of marriage; as a professional prin- 
ciple, an invariable rule of conduct, he should take refuge behind 
the proscriptions of the law. The alternative is cruel. It requires a 
certain courage in such cases for the physician to remain master of 
himself and faithful to his duty. If it be a misfortune to society, 
it would be a much greater damage to permit the enfeeblement of 
the tutelary principle of the medical secret, which is one of the 
necessities even of the social order. 

Dr. Gaide, commenting on this case, says: "If a client affected 
with constitutional syphilis, which resists all treatment, does not 



\ 



I 



fear to solicit the hand of a pure young woman, who is the joy of 
her family ; if the father of this young woman comes to demand of 
me in confidence, if he can in all security give her to this man, who 
would soil her by his first contact and leave her as her only con- 
solation children affected by his malady, shall we respond with a 
silence which may be misunderstood, and thus render ourselves ac- 
complices of a marriage, the fruits of which will be so deplorable ? 
Never would I have the courage to obey the law under such cir- 
cumstances. My conscience would speak higher than it, and with- 
out hesitation I would say, 'No, do not give your daughter to this 
man/ and I would not add another word." 

Juhel Renoy maintains that it is not only lawful, but even com- 
pulsory for any doctor who is a man of honor and courage, to oppose 
and even denounce any criminal projects his patients might en- 
tertain in regard to marriage. He cites two instances in which 
he had undertaken the cause of young girls who were about to fall 
into a trap of this kind, and as his patients were without conscience, 
he refused to listen to the moral reason he adduced, he declared 
that he did not feel bound to secrecy toward them any longer, and 
that he would either go or send to the parents of the young women 
and warn them. Under this threat one of these marriages was 
broken off, but a more direct interference was required in the other 
case. He sent for the girl's father by one of his confreres, and re- 
plied without hesitation to the question put to him, "No, sir, do not 
marry your daughter to Mr. X," with so much emphasis that the 
marriage was broken off. 

Commenting on this action of Renoy, Dr. Jullien says: "If the 
result was fortunate, the method employed was detestable. It was 
treason, perpetrated with the best intentions, but still treason, for it 
is all very well to say the patients were warned, but it was not until 



222 



THE CASUIST. 



they were no longer masters of their secret, which would no doubt 
not have been revealed if they had known what use there was to 
be made of it. Strict duty would have required that before receiv- 
ing this confidence our confrere should have warned the parties 
interested, that he would publish the information if he saw fit." 

Dr. Morrow, from whose excellent work these extracts have been 
made, expresses his own opinion on this subject in the following 
words : "While the obligation of the medical secret is in the general 
interest of the social order, and should be maintained as a fixed prin- 
ciple of professional conduct, it may be admitted that a situation of a 
peculiarly aggravating character may present itself when the patient 
shows himself an exceptional sort of brute by the obstinacy with 
which he adheres to his criminal purposes after he is assured that he 
will almost certainly infect his wife — in such a case the physician, 
knowing all the circumstances and fully appreciating the tragic sig- 
nificance of such a step, must be guided by his own lights and con- 
science. If he should consider the criminal intent of this monster as 
entirely without the pale of professional protection, and refuse 
to stifle his own feelings as a man of heart and conscience, who 
shall condemn him ? Such a man is far more likely to prove loyal 
to the highest ideals of ethical duty in his relations with his patients 
in general than the man who views these social catastrophes with 
a cold-blooded indifference, disclaiming all personal responsibility, 
and considers that in guarding the dissolute secret of his patient he 
is doing his whole professional duty." 

It is clear from these extracts, and from the opinions of many 
other medical men which might be quoted, that the medical fraternity 
is not at all united as to the ethics of revealing the medical secret, 
even in an extreme case, like the one we give. The subject indeed is 
fraught with much difficulty. Those who hold that it is never 



THE MEDICAL SECRET. 



223 



allowed to betray the medical secret, not even to prevent the com- 
mission of a crime, maintain that the social welfare would suffer 
more, eventually, by the revelation of the secret than by its keep- 
ing. For the very ones who have most need of confiding in a 
physician are the very ones who would be most deterred from such 
confidence, by the knowledge that the physician might under cer- 
tain circumstances lawfully betray their secret. And it was in this 
conviction, they say, that the laws of many countries make it a 
crime for the physician to reveal his patient's secret for any pur- 
pose whatsoever, even to protect the innocent or to prevent the 
commission of a crime. Thus the French Penal Code, art. 378, 
decrees that "physicians, surgeons and other officers of health, also 
pharmacists, midwives and all other persons, the depositaries, by 
their state or profession, of secrets which have been confided to 
them, outside of cases where the law obliges them to denounce, who 
shall reveal their secrets shall be punished with imprisonment from 
one to six months, and by a fine of from one hundred to five hun- 
dred francs." And recently in England, the House of Lords sus- 
tained the decree of the lower court, punishing an eminent physician 
by an enormous fine for having revealed to the wife, to protect her 
from contamination, the medical secret of her husband, who was 
one of his patients. 

A German court, on the other hand, decided in 1903 that the 
obligation to secrecy on part of the physician ceases when a higher 
moral obligation urges him to divulge the truth. In the instance 
of husband and wife the court considers the physician as permitted, 
and even in duty bound, even against the expressed will of the sick 
partner, to apprise the other of a danger of infection. The court 
adds that such higher moral obligation may well be present also in 
instances other than between husband and wife. 



224 



THE CASUIST. 



In the case before us it must always be kept in mind that the 
patient, who has committed his secret to the physician, is going 
to commit a crime, a moral, if not a legal crime, most odious in its 
nature and most far-reaching and destructive in its effects. The 
physician is the only one who can prevent the commission of the 
crime, because he alone knows the secret. All his pleading, all his 
admonitions, all his denunciations to the patient in private are of no 
avail. The crime will be committed, unless the physician breaks 
his professional silence and reveals the secret of his patient. Does 
strict justice toward the patient oblige the doctor to secrecy under 
these circumstances? Does the welfare of the social order demand 
that even in this extreme case the secret of the criminal shall be 
guarded inviolate, though he is about to perpetrate a great wrong? 
The theologians are unanimous that in a case like this neither justice 
toward the patient nor the interests of the social order require of a 
physician that he keep inviolate the secret of a patient who is de- 
termined to commit a crime, the cause of which crime or the in- 
centive to it is contained in the secret. 

This is the doctrine of St. Alphonsus (de oct. praec. 971) : "Potest 
manifestari secretum commissum ex justa causa, nempe si servare 
secretum verteret in damnum commune, vel alterius innocentis, seu 
etiam ipsius committentis, quia tunc ordo charitatis postulat ut 

reveletur." 

Salmanticenses (tr. xiii., de restitut. cap. 4, n. 82) : "Similiter 
secretum etiam commissum revelandum est, quoties ejus observatio 
vergit in damnum commune, vel alicujus innocentis, quia secretum 
non potest obligare contra caritate malteri debitam, sed ex caritate 
debemus cavere damna communitatis et innocentis." 

Lugo (de Just, et J. disp. 14, n. 142) : "Secretum etiam com- 
missum non habet locum in iis casibus, in quibus ipse qui secretum 



THE MEDICAL SECRET. 



225 



commisit, in juste vexat rempublicam vel alium innocentem, nee vult 
ab injuria desistere: tunc enim quantum opus fuerit ad injuriam 
avertendam, poteris secretum commissum revelare, etiamsi promis- 
isses et obligasses te ad sustinendam mortem, et quaelibet mala 
pro custodia secreti: hoc enim non tollit, quod possit postea vis vi 
repellere." 

This is the doctrine also of modern moralists, v. g., Lehmkuhl, 
Konings, Genicot, Noldin, etc., as will appear from a consultation 
of their treatises on the eighth commandment. It can scarcely be 
maintained with any good show of reason that the interests of 
society demand that a criminal be shielded, while committing a 
crime, by guarding his secret. It will not interfere with the free 
and confidential relations between physician and patient if it is under- 
stood by the patient that his secret may be revealed if such reve- 
lation be necessary to prevent him committing a crime. The phy- 
sician's duty toward society and toward an innocent third party out- 
weighs and ought to outweigh his duty toward a patient contem- 
plating a crime against the community at large or an innocent private 
citizen. It would make for immorality to close the mouth of a 
physician in such circumstances. Of course, the physician must 
endeavor by every other legitimate means in his power to dissuade 
the patient from committing the crime before it becomes lawful for 
him to have recourse to the extreme measure of revealing his secret. 
But it can be no part of the contract entered into by patient and 
physician, that the physician shall be silent when his silence becomes 
immoral, as it does when it aids and abets the commission of 
crime. > 

To this line of reasoning it may be objected that it calls into 
question the morality of the laws of many civilized nations, pro- 
hibiting the revelation of the medical secret even in as extreme a 






226 



THE CASUIST. 



case as the one under discussion. To this we answer in the words 
of the author quoted above : 

u It is worthy of note that in Europe there is manifest a growing 
dissatisfaction upon the part of many medical men, amounting in 
some instances to an active protest, against the intangibility of the 
medical secret, especially its inflexible application in cases where 
the question of marriage is concerned. As indicating the drift of 
professional sentiment in this direction, in the discussion upon 
the 'Sanitary Guarantees of Marriage/ before the Societe Franqaise 
de Prophylaxie Sanitaire et Morale, July, 1903, many authori- 
tative voices were raised against the dogma of the professional 
secret in the matter of marriage. M. Forin demanded 'that the 
law authorize the physician to no longer respect the professional 
secret, when it comes to a project of marriage/ In the opinion 
of M. Crequy 'the medical secret ought to have exceptions which 
in the superior interest of the race, should also apply to venereal 
maladies/ MM. Cruet and Valentino presented essays demanding 
the relaxation of the medical secret in cases where the interests of 
the individual protected were opposed to the general interests. M. 
Valentino declares that professional secrecy is the most powerful 
obstacle to all real hygienic progress, as by keeping concealed all 
morbid conditions, it impedes the efforts of the social forces against 
the spread of disease, renders ineffective the law for the compulsory 
notification of infectious diseases, and prevents the sanitary pro- 
tection of marriage/' 

It is hardly necessary to remark that the physician is bound toward 
the innocent third party only "ex caritate." Toward his patients 
he is bound "ex justitia"; toward others "ex caritate." Now 
charity does not bind "cum tanto incommode" Consequently 
wherever the physician would incur serious risk, as legal prosecu- 



THE MEDICAL SECRET. 



227 



tion, or loss of practice, etc., he is not obliged to protect an innocent 
third party from injury, by revealing the medical secret. 

N. B. — What is said here about the medical secret, applies to all 
secrets committed to priests outside of Confession, to lawyers, mid- 
wives, nurses, druggists, dentists, in short, all professional men who 
by reason of their profession are made the guardians of the secrets 
of others. 



P 



LI. RESPONSIBILITY FOR MASS STIPENDS. 



Mr. M. on his deathbed left Father Joseph $500 to say Masses 
for the repose of his soul. Half of this sum Father Joseph gave to 
another priest, a personal friend and a man in every respect above 
reproach, who, he knew, would say the Masses without fail. The 
two hundred and fifty Masses that Father Joseph kept himself he 
found it impossible to say within a year from the time he received 
them owing to the large number of nuptial and funeral Masses he 
was obliged to say. At the end of the year Father Joseph has still 
one hundred Masses to say for the repose of the soul of Mr. M. 
Father Joseph's particular friend, the priest, to whom he gave the 
other two hundred and fifty Masses to say, allowed himself to be 
persuaded to invest all the money he had, including this sum of 
$250 for Masses for the soul of Mr. M., in some real estate transac- 
tion and lost it all. He was taken sick a few months afterward and 
died, leaving no money and making no provision for the saying of 
the two hundred and fifty Masses given him by Father Joseph. 

Father Joseph has heard something about a special decree regard- 
ing Mass stipends, issued last year by the Holy Father Pius X., and 
which imposes graver obligations in this matter than was formerly 
imposed by the moralists. He is much worried as to whether this 
new decree affects his case, and to what extent. And he would like 
to know what is his duty in regard to these Mass stipends which he 

received from Mr. M. 
Father Joseph's query resolves itself into two points : 
1. What must he do with the hundred Masses which he himself 

has left over at the end of one year from the time of receiving them? 

May he continue saying them, since it was not his fault that thev are 

still unsaid? 

228 



RESPONSIBILITY FOR MASS STIPEhWS. 



229 



2. Is Father Joseph responsible for the two hundred and fifty 
Masses which he gave to his friend, together with the stipends? 
"Videat ipse," he thinks, with regard to his friend. When he 
handed over the Masses, together with the stipends, to a responsible 
priest, he acted prudently and reasonably, and he does not see why 
he should still be held responsible. He has read in many a volume 
of "Casus Conscientiae," that if a hundred Mass stipends were 
stolen from a priest through no fault of his, before the Masses were 
said, the priest would not be bound to say them, because it would 
be unreasonable on the part of the donor to require this of him. 
In accepting the stipends for the Masses, either for himself or for 
others to say, he did not intend to be responsible for the money 
under all circumstances, but only to a reasonable and just extent. 

Answer.— On May 11, 1904, Pope Pius X issued a special decree 
concerning "Missae manuales," to be binding on all priests through- 
out the world. These "Missae manuales" are the Masses that a 
priest receives, from day to day, from the faithful, to say for one 
intention or another, and for which he receives a stipend. "Who 
must say these Masses T 9 "When must they be said ?" "To whom 
may they be given, in case the original recipient can not say them ?" 
"In what sense is the original recipient still responsible for them, in 
case the priest to whom he gave them does not say them ?" These 
are some of the questions which the Holy Father's instruction 

answers. 

It may be well, therefore, before discussing Father Joseph's case, 
to give the several articles of the Pope's decree which refer to the 
matter in hand. The decree emanates from the Sacred Congrega- 
tion of the Council, and is dated May 11, 1904. It is entitled: 
"Decretum de observandis et evitandis in Missarum manualium 
satisfactione." 



230 



THE CASUIST. 



Manual Masses, according to the decree, are all Masses that the 
faithful, from day to day, request a priest to say, at the same time 
offering him a stipend for the Mass, whether the stipend be given 
out of hand (brevi manu) or be provided for in the last will, or the 
estate be burdened with the obligation of having a certain number 
of Masses said from year to year, in perpetuum, provided only they 
may be said in any church, by any priest, as the head of the family 
may elect. 

1. No priest may ask for or accept Mass stipends unless he is 
morally certain that he himself will be able to say the Masses within 
the time hereinafter fixed for acquitting that obligation; he must 
say such Masses personally, except he be a bishop ruling a diocese, 
or a prelate of a religious order having jurisdiction; if he be a 
bishop or a prelate the Masses may be said by the priests subject 
to such jurisdiction. 

2. The ordinary time limit for saying a Mass for which a stipend 
has been accepted is one month; six months for one hundred Masses, 
and in similar proportion for larger numbers. 

3. No priest is allowed to accept a larger number of stipends than 
he himself can probably satisfy within one year from the time of 
accepting them, unless with the explicit consent of the person offer- 
ing the stipend. 

4. After the lapse of a year from the date that the stipends were 
received, if through unforeseen circumstances there remain a con- 
siderable number of Masses unsaid, the obligation is to be placed 
in the hands of the bishop, together with the honorarium, unless 
it is clear that the delay is at least not contrary to the intention of 
the original donor of the Masses. In this matter the Holy Father 
burdens, "sub gravi," the consciences of those who are responsible 
for the Masses. 






RESPONSIBILITY FOR MASS STIPENDS. 



23' 



5. Those to whom a number of stipends has been committed, with 
the understanding that they may be given to other priests to say, 
may give them to any priests they have a mind to, provided they 
are certain, from personal knowledge, that these priests can and 

will say the Masses. 

6. Those who have given the surplus stipends, for which they 
have been unable to say the Masses, to their Ordinary, may con- 
sider themselves free from all further obligation before God and 
the Church. But whoever commits the stipends received by him 
to other priests is responsible for them before God and the Church 
until he knows for certain that the Masses have been actually said; 
and if, through the loss or the miscarriage of the money, or through 
the death of the priest, or through any other accident, there remain 
any reasonable doubt as to whether the Masses were said, the 
original recipient of the Masses is bound in conscience to say them 

or to have them said. 
These are the articles of the decree that bear upon the case of 

Father Joseph. 

It will be seen at once that they render the doctrine regarding 
Mass stipends much more stringent than the commonly accepted 
teaching of the moralists. 

Without going into further details concerning the decree, we will 

say briefly that in the light of it : 

1. Father Joseph is bound, under pain of mortal sin, to hand over 
the one hundred Masses, together with the stipends which he has 
still left after one year from receiving them, to his bishop, who will 
take care of them. And having handed them over to the bishop, 
Father Joseph is in no wise responsible for them any longer. 

2. Father Joseph must also say the two hundred and fifty Masses 
that he gave his friend to say. His friend did not say them him- 



X 



2 3 2 



THE CASUIST. 



self, since he died shortly after receiving them, nor is there any 
record that he had them said by somebody else. In this transaction 
Father Joseph is not merely the transmitting agent between Mr. M., 
who gave the Masses, and his friend the priest, to whom he gave 
them. Father Joseph himself entered into a contract with Mr. M. 
to say the Masses. 

Nor should Father Joseph have taken the five hundred Masses 
from Mr. M. without Mr, M.'s explicit consent that he might take 
several years to say the Masses. According to the Pope's decree, it 
is expressly forbidden to accept more Masses than one can say one- 
self within a year. 

This decree of the Holy Father is in every way reasonable and 
timely, and if Father Joseph will only strive to observe its provi- 
sions in the future, it will save him from contracting a great deal 
of responsibility before God, which perhaps he would never be able 
to satisfy for in this world. 



LIL A SON'S DUTY TOWARD HIS FATHER 



A young man, whom we will call Robert, accuses himself in Con- 
fession of having borne a great dislike and even hatred toward his 
father for many years. His father, he says, was a drunkard, and 
filled their home with shame and sorrow. He abused the mother 
and the children, cursed them, drove them from the house by 
his violence, and even threatened their lives. When Robert was 
seventeen years of age he left home, against the will of his father, 
and came to New York to make his way in the world by learning 
a trade. His father wanted him to remain at home and to go 
to work for a daily wage, which the father hoped to be able to spend 
for drink. After Robert had been in New York for a number of 
years the father died, having wasted in drink everything he pos- 
sessed, and leaving a good many drink bills unsettled in different 
taverns. Robert, who in the meantime had prospered greatly and 
had considerable money in the bank, buried his father as cheaply 
as possible ; in fact, so cheaply that it caused considerable unfavor- 
able talk among the townspeople. Nor did Robert ever afterward 
have even one Mass said for the repose of his father's soul, or ever 
offer a penny toward the payment of his father's debts. What 
judgment is the confessor to form of Robert's conduct? 

Solution. — It is necessary to separate the different counts In 
Robert's accusation in order to form a clear estimate of the sinful- 
ness or lawfulness of Robert's conduct. There are four separate 
counts in the accusation, namely : 

( I ) Robert accuses himself of harboring hatred toward his father ; 

(2) of having left home against the will of his father; (3) of hav- 
ing shown disrespect toward his father in the matter of the funeral 
arrangements, and ingratitude in not having Masses said for his 

233 






234 



THE CASUIST. 



soul; (4) and, finally, of injustice toward others in not settling 
his father's debts. 

Let us take up each one of these four counts of Robert's accusa- 
tion, and see whether and in how far Robert may have sinned. 

1. Robert accuses himself of cherishing a great dislike and even 
hatred toward his father. Is this odium inimicitiae, or is it odium 
abominationis? Odium inimicitiae is sinful; odium abominationis 
need not necessarily be sinful. Odium inimicitiae is the hatred we 
conceive for some one personally, not merely for the evil that is in 
him or the wrong that he does, but for himself personally, inclusive 
of the good there may be in him, and we wish him evil, precisely be- 
cause it is injury to him. Odium abominationis is something quite 
different from this. It is the strong aversion we feel for some one 
not personally, but for his vices and excesses. Thus, we hate, or 
rather abominate, the drunkard, not because of his individual per- 
sonality, but because of his drunkenness. We hate his drunkenness, 
and we shun him, not because of himself, but because of his drunken- 
ness. This odium abominationis may be a venial sin sometimes, but it 
is not a mortal sin. 

Now, as regards Robert's hatred for his father, we are inclined to 
think that it was odium abominationis, and, under the circumstances, 
that it was not a sin. If Robert ordinarily showed his father the 
respect due to him, and obeyed him in reasonable things, then the 
hatred that Robert feels for his father is nothing more than a just 
loathing and disgust for his father's excesses. He despises and 
abominates his father's "weak, sick way of vomiting up his exist- 
ence"; and in this he would seem to be without sin. Of course, 
there is always present a danger that this odium abominationis may 
go over into odium inimicitiae, and become mortally sinful, and 
Robert must be put on his guard against such a contingency. 



A SON'S DUTY TOWARD HIS FATHER. 



235 



2. Robert accuses himself of disobedience against his father in 
leaving home against his father's wishes. It does not appear that 
Robert sinned in this. Robert's motive in leaving home was just 
and honorable; namely, to render his existence useful by learning 
a trade. His father's motive in keeping him at home— namely, that 
he might have the benefit of his wages for drink— was unreasonable 
and sinful. No good reason can be advanced why Robert ought to 
obey his father, when such obedience would entail lifelong detri- 
ment to Robert's best interests. Of course, Robert is bound to see 
to it that his father does not want for food or clothing ; but when 
the father has wherewith to buy food and clothing, but spends it 
for drink, there is no obligation for Robert to supply him with 

food and clothing. 

3. The third count in Robert's accusation regards his father's 
funeral, and having Masses said for his soul. In this we think that 
Robert sinned. That Robert, who had plenty of money, had his 
father buried in such a niggardly and miserly way, showed a lack 
of elementary respect for his father, and was really insulting to his 
father's memory and savored of revenge. Robert was bound to 
observe the "decencies" of society in burying his father, for these 
decencies are founded on the reasonable respect and honor which 
the conscience and feelings of men decree should be shown to others. 
There was no obligation for Robert to provide a funeral for his 
father in keeping with his means ; but there certainly was an obliga- 
tion to give his father decent and honorable Christian burial. 

Robert commits a mortal sin also in not having Masses said for 
the repose of his father's soul. His father is, in all likelihood, in 
grave spiritual need. Robert has plenty of means at his disposal to 
succor his father without grave inconvenience to himself. Not to 
do so is to transgress the law of Christ. For all theologians are 



236 



THE CASUIST. 



agreed that for a child, who has the means, to refuse to have any 
Masses said for the repose of his parent's soul would be the com- 
mitting of even a mortal sin (St. Thorn. 2 Q. q. IOI, a. 2; Ball. P. 
n. 7; Genicot i. 346, ii., etc.). 

4. Finally, as regards the fourth count, there is no obligation for 
Robert to settle any of his father's drink bills, since he has received 
no inheritance from his father. "Liberi tenentur solvere debita par- 
entum, tantum ratione honorum acceptorum" (S. Alph. n. 333). 



V_ 



LIII. APPROPRIATING ANOTHER'S IDEAS. 

The following case has been submitted to us for a solution: 
Mr. C, a draughtsman, is told by his employer to try to remember 
and make a sketch (that is, to steal the idea) of a drawing which 
was being submitted for sale by another draughtsman. Would it 
be wrong for Mr. C. to do so? 

Solution.— All theologians are agreed that an author or writer or 
architect or draughtsman has a strict right to the fruits of his genius. 
And this right of ownership in the fruits of one's intellectual labor is 
founded in the law of nature. For if it be a law of nature that men 
should have an exclusive right to the fruits of the labor of their 
hands, with much more reason ought they to have an exclusive right 
to the fruits of the labor of their brains. And if the good of civilized 
society requires that a man be secured by law in the peaceful pos- 
session of whatever property he has acquired by his industry, with 
much more reason must we hold that the good of civilized society 
requires that men be secured by law in the peaceful possession of 
that higher and more valuable kind of property, namely, the results 
of intellectual and artistic talent. There is nothing that is more 
intimate to a man-or, to speak more properly, there is no kind of 
property so intimately and closely connected with a man— as the 
fruits of his own genius. For these are the fruits of the creation of 
his own mind, and had no existence before he brought them into 
being; and therefore the fruits of his intellectual industry belong to 
him and are part of his being in a way that no other kind of goods 
and chattels can be said to be. Consequently, it has always been 
maintained by theologians and jurists alike that an author or in- 
ventor or painter, or any other intellectual worker, is entitled to ex- 

237 



23* 



THE CASUIST. 



elusive ownership in the results of his intellectual labor as long as he 
does not hand over his rights to the public, or part with them by sale 
or free gift to another. And this strict right of an author or inventor 
or other intellectual worker to the fruits of his genius imposes a 
grievous obligation on all other persons to respect this right, and to 
avoid all invasion of it. It is not allowed to steal another's ideas, 
any more than it is allowed to steal his lands, and any such theft 
must be made good by adequate restitution. 

"Jamvero omnes concedunt quemlibet hominem plenum dominium 
habere in frustus ingenii sui quamdiu ea publici juris non fecerit; 
nihil enim magis proprium nobis esse potest quam quod proprio 
mentis labore acquirimus. Et sane si res externae domino fructi- 
ficant, a fortiori facultates internae, quae ab essentia nostra im- 
mediate dimanant. Qui igitur manuscripta vel inventa alterius sur- 
riperet, ac vulgaret, absque auctoris licentia, contra justitiam pec- 
caret, et ad damna rescarcienda teneretur ; siquidem violat duplex jus 
quod auctori competit, ne, ipso invito, edatur opus ab eo scriptum, 
et ne minuatur lucrum ex eo percipiendum" (Tanquerey, III., 39). 
Judge Kent (American Law, Vol. II., n. 365) says: 
"Another instance of property acquired by one's own act and power 
is that of literary property, consisting of maps, charts, writ- 
ings and books ; and of mechanical inventions, consisting of useful 
machines or discoveries produced by the joint result of intellectual 
and manual labor. As long as these are kept within the possession 
of the author, he has the same right to the exclusive enjoyment of 
them as of any other species of personal property; for they have 
proprietary marks, and are a distinguishable subject of property. But 
when they are circulated abroad and published with the author's 
consent, they become common property, and subject to the free use 
of the community." 



APPROPRIATING ANOTHER'S IDEAS. 



239 



Mr. C, therefore, is not allowed, in conscience, to use the ideas of 
his fellow-draughtsman in the interest of his employer. His fellow- 
draughtsman, by offering his designs for sale, does not relinquish his 
right to them. For another to steal them or to use them against 
their rightful owner's and creator's will is to transgress the seventh 
commandment, and full pecuniary restitution must be made to the 
original designer or draughtsmen for any loss he may have suffered 
before the sin can be forgiven. 



<~- 



LIV. INCURRING ECCLESIASTICAL CENSURE. 

Titus, a bishop, before placing the case of a certain holy man in 
the hands of the Sacred Congregation of Rites, with the hope of his 
beatification, issues a general decree commanding all who may have 
in their possession any writings of this holy man to send the same 
to the Chancellor within two months from the date of the decree 
under pain of excommunication, to be incurred ipso facto. The 
decree likewise threatens with the same punishment all who, having 
knowledge of the existence and whereabouts of any such manuscript, 
do not make known the same to the proper authorities. Caius, a 
priest, has in his possession several letters written to him personally 
by the dead and saintly man. He is unwilling to part with these 
letters because they were written for the direction of his own con- 
science, and if made public would lead to grave injury of his reputa- 
tion. In his anxiety he seeks the advice of a neighboring priest. 
Here he is told that he may either remove his name from the letters 
in his possession, and then turn them over to the bishop, or he may 
burn them, as human laws, especially when penal, do not oblige 
under such grave inconvenience. Caius revolves the whole matter 
in his mind for some time and finally concludes to burn the docu- 
ments. In a short time the valuable letters are destroyed. 

The question is asked (i) whether fear of loss of reputation or 
such like inconvenience saves one from incurring censure; (2) 
whether the advice given to Caius by his brother priest was lawful 
and proper; (3) whether in the case given the censure was really 
incurred by the two priests, and to what are they bound. 

1. Censure is a canonical punishment which has for its purpose 
the prevention of sin. It is inflicted, therefore, only after the infrac- 

240 



INCURRING ECCLESIASTICAL CENSURE. 



241 



tion of some law. It follows, therefore, that any cause which 
excuses from the transgression of a law will likewise exempt one 
from the annexed censure. There are times when grave fear of evil 
will exempt one from the observation of some law; at other times 
neither the fear of a graver evil nor the fear of the gravest evil will 
destroy the obligation of the law. 

However, it must be clearly understood that for the incurring of 
censure sin and contempt of the censure are required. Hence, if 
there is question of some precept of the natural law from the ob- 
servance of which grave fear does not excuse, yet the presence of 
fear may preserve one from incurring a censure that is annexed tc 
the sin. Owing to the presence of fear we may in truth say that the 
law is broken rather from the weakness of nature than from any 
malice or contempt of the church threatening the censure. And, 
therefore, says St. Alphonsus (I. 7, n. 46) : "He who through fear 
commits murder, which is forbidden under pain of censure, sins 
truly, but does not incur censure, because he does not sin against 
the right of the Church, against whose authority no special contempt 
is shown." The censure would be incurred, however, even if the 
gravest fear were present, when the observation of the law is made 
necessary by public good, or when the fear would lead directly to 
contempt of religion or of the authority of the Church (St. Alph. 

I., c). 

2. The counsel given to Caius, to remove his own name from the 
letters in question, was right and proper. Had he done so he would 
have taken away all cause of fear of loss of reputation, and the 
speculative and practical doctrine contained in the letters would 
have been available in the cause of the beatification of their writer. 
It is clear from this that the second part of the advice given to 
Caius, viz., to burn the letters, was improper and unjust. For, as 



242 



THE CASUIST. 



said above, by the removal of the name contained in the letters, all 
danger of loss of reputation was irrevocably prevented, and with it 
was taken away all grave inconvenience. Caius therefore acted 
unlawfully in burning the letters. 

3. The priest who advised Caius in his anxiety did not incur the 
penalty of excommunication, even though he did not make known 
to the proper authorities the existence of the letters held by Caius. 
For he knew of these letters only because his counsel was sought in 
reference to them. Therefore he was bound by the strictest obliga- 
tion to secrecy. Now while he was thus bound the letters were de- 
stroyed, and consequently he was not then bound to broach the 
matter to the bishop. 

Caius, on the other hand, objectively speaking, incurred the 
penalty of excommunication. The reason of this is plain. He had 
in his possession the manuscript sought after by the bishop, and 
could have transferred it to his ordinary without detriment to him- 
self or others. Consideration must be given, nevertheless, to the 
fact that Caius acted in good faith, and by reason of this ignorance 
he was practically excused from the penalty of his fault. Strictly 
speaking he did not commit sin, and where there is no sin there is 
no excommunication. He is, moreover, not bound to anything 
further, since the letters are no longer in existence. Certainly he is 
not bound to reveal his part in the affair; for such a revelation 
would be productive of no good and would endanger his good name. 



LV. GODPARENTS IN BAPTISM. 

A parish priest, whom we will call Father William, had occasion 
to baptize the child of two strangers, who were spending a few weeks 
in his parish, during the last summer. Being strangers, they did not 
know any one whom they might ask to act as sponsors for their child, 
and therefore brought the child to the church to be baptized, without 
any godparent. The priest had just finished Mass, and having two 
altar-boys present, he made them stand for the child. The child 
was a girl baby. After the ceremony was completed, Father Wil- 
liam began to think that perhaps he should have allowed only one 
of the altar-boys to stand for the baby, and that as there were some 
nuns in the church at the time, he would have been more within the 
law, had he called one of the nuns to act as godmother to the child. 
In looking the matter up afterward, he discovered, what was news 
to him, that unless the sponsors touched the child physically while 
it was being baptized, they contracted no relationship to the child, 
and as he never required godfathers to touch the child, physically, 
when he baptized, he concluded that he had baptized this child with- 
out its having any sponsors, and therefore did not enter the altar- 
boys' names in the Baptismal records, as sponsors. He now refers 
the following questions to the Homiletic Monthly for a solution : 

1. May two persons of the same sex stand for a child? 

2. May nuns stand for a child ? 

3. Is it required that sponsors touch the child physically, while 
it is being baptized, in order to contract spiritual relationship ? 

4. In the case of converts from the Episcopal church, may two 
godfathers be allowed to stand for a male child, or two godmothers 
for a female child, or may the parents themselves ever be permitted 
to stand for their own child? 



243 



244 



THE CASUIST. 



5. Finally, in a very special case, may a Catholic stand sponsor 
for a non-Catholic child, baptized by a non-Catholic minister of 
the Gospel ? 

Answer. — The custom of having certain persons act as sponsors 
or godparents in Baptism, goes back to the earliest ages of the 
Church. Reference is found made to them by the Fathers and early 
writers such as St. Augustine, St. Basil, Tertullian, etc. The law at 
present in the Church regarding godparents dates from the Council 
of Trent, and it is that law that must guide us in this matter of god- 
parents. 

According to the Council of Trent (S. 24) at least one godparent, 
either male or female, and not more than two, must stand for a child 
in solemn Baptism, under pain of mortal sin. But it is not allowed 
to admit two male sponsors or two female sponsors to stand for the 
same child, neither is it permitted to the parents of the child to act as 
sponsors for it. The words of the Council of Trent are : 

"Sancta Synodus statuit, ut unus tantum sive vir, sive mulier, 
juxta sacrorum canonum statuta, vel ad summum unus et una bap- 
tizatum de Baptistno suscipiant, inter quos, et baptizatum ipsum, 
et illius patrem et matrem, nee non inter baptizantem et baptizatum, 
baptizatique patrem ac matrem tantum spiritualis cognatio contra- 
hatur" (Sess. 24, cap. 2). 

And the words of the Roman Ritual are : Patrinus unus tantum, 
sive vir sive mulier, vel ad summum unus et una adhibeantur, ex 
decreto Con. Trid.; sed simul non admittantur duo viri, aut duae 
mulier es, neque baptizandi pater aut mater (de Patrinis, n. 23). 

Therefore according to the Council of Trent only one, or at most 
two, a male and a female should be admitted to act as sponsors, and 
according to the opinion of St. Alphonsus Liguori, the pastor would 
be guilty of mortal sin, if he admitted a greater number. When 



GODPARENTS IN BAPTISM. 



245 



there are two sponsors, they should be of different sexes, not two 
males, nor two females. St. Alphonsus goes so far as to affirm that 
it would be a mortal sin to admit two males or two females, if 
they be of a different sex from that of the child, that is, two male 
sponsors for a female child, or two female sponsors for a male 
child ; but the holy doctor holds that to admit two sponsors of the 
same sex, and of the same sex as the child, would be only a venial 

sin (Lib. vi., n. 155). 

Godparents may not be more than two in number, in order that 
the spiritual relationship arising from Baptism, may not be multi- 
plied. And it is for this same reason that St. Liguori believes it to 
be a grievous sin to allow, v. g., two godfathers to stand for a girl, 
because spiritual relationship is thereby needlessly extended, and 
diriment impediments to marriage multiplied without cause. In 
private Baptism, that is, where the ceremonies of the Sacrament are 
omitted, there is no obligation to have any godparents. 

2. The second question proposed to us is this : May nuns act as 

godmothers? 

The Roman Ritual, de Bapt., n. 26,, says: Praeterea ad hoc 
(munus patrini) etiam admitti non debent Monachi, vel Sancti- 
moniales, neque alii cujusvis Ordinis Regulares a saeculo segre- 
gati. This is generally interpreted to mean religious orders in 
which solemn vows are taken. It includes, however, also all reli- 
gious congregations having simple vows, if their constitutions for- 
bid the acceptance of this office. There are very few, if any, re- 
ligious congregations, whose constitutions do not forbid their mem- 
bers to act as godparents, and to do so against the rules of the order, 
would be a sin against the vow of obedience. 

3. To the third question we answer, that it is necessary to touch 
the child physically, while it is being baptized, in order to contract 



246 



THE CASUIST. 






the spiritual relationship. Ut in ipso Baptismo, per se vel per pro* 
curatorem physice teneat aut tangat infantem, dum baptizatur, 
aut statim levet aut suscipiat de sacro fonte, aut de manibus baptiz- 
antis (St. Lig. Lib. vi., n. 146). It is not necessary that the godparent 
touch the child's body immediately, that is, the child's flesh, but it suf- 
fices if the godparent touch the child's clothes. Mere witnessing the 
Baptism, or mere assistance at it, even though one have the intention 
of acting as godparent, is not sufficient to contract spiritual re- 
lationship. As Baptism is a new birth, the godparents must not 
merely witness it, but they must take part in it. In case of a sub- 
sequent marriage between the godparent and godchild, if there 
were doubt as to whether the godparent physically touched the child 
in Baptism, a dispensation would be necessary super impedimento 
cognationis spiritualis, ad cautelam. 

4. In the Book of Common Prayer of the Protestant Episcopal 
Church of the United States, there is this article: "There shall be 
for every male child to be baptized, when they can be had, two 
godfathers and one godmother ; and for every female, one godfather 
and two godmothers; and parents shall be admitted as sponsors, 
when it is desired." 

If more than two godparents, namely, one man and one woman, 
be designated by the parents of the child to stand for the child, 
whether they be Catholics or non-Catholics, they must be prevented 
by the priest, from standing. If they are Catholics, this will be 
very simple as a rule. If they be non-Catholics, it may be practically 
impossible to prevent them from acting as sponsors, without serious 
inconvenience. In this case they may be allowed to witness the 
ceremony, without having them touch the child physically, when it 
is being baptized. If you can not, without giving offense, keep them 
from touching the child or holding it, while it is being baptized, 



GODPARENTS IN BAPTISM. 



247 



you may allow them even this privilege ; but in no case are they 
to be considered the sponsors of the child. The law forbidding more 
than one male and one female sponsor, and the law forbidding non- 
Catholics to act as sponsors, are church-laws and do not oblige cum 

gravi incotnmodo. 

This is the general opinion of modern theologians. Quodsi 
hereticus a parentibus jam designates, absque magna offensione 
removeri non posset, admitti posset tamquam testis, quin admonere- 
tur de tangendo infante in actu ablutionis. Quin etiam si absque 
gravi malo impediri non possit, quominus infantem tangat, ad evi- 
tandum tantum malum, hereticus admitti posset, cum res non stt 
intrinsecus mala (Noldin, III., n. 79. Lehmkuhl, Casus Consc. II., 

n. 84). 

5. It is never allowed that a Catholic stand for a non-Catholic 

child, in a non-Catholic Baptism. The Holy Office has expressly 

forbidden it : 

Absolute non licere, nee per se, nee per alios, fungi officio patrini 
in baptismis, quae hereticorum filiis ab hereticus ministrantur (S. 

Officium, May 10th, 1770). 

Some theologians, with St. Alphonsus, thought that a Catholic 
might act as sponsor in a non-Catholic Baptism, when such action 
on the part of the Catholic could in no manner be looked upon as 
an approval of a non-Catholic rite. They thought that there was 
always present some hope of bringing the child up in the faith, and 
that this was a sufficient justification for taking part in a non- 
Catholic ceremony. But, apart from the prohibition of participating 
in non-Catholic rites, it is never allowed to ask what another can not 
grant without sin; but the godparent asks of the non-Catholic 
minister, what the minister can not confer without sin, namely, 
Baptism (Lehmkuhl, II., 71). 






i! 



LVI. RIGHT OF A BISHOP TO SUSPEND A PRIEST 

WITHOUT TRIAL. 

Titius, a priest, exercising the functions of the sacred ministry in 
a certain diocese, is "reported" to his bishop for indulging too freely 
in intoxicating drink— in fact, for being well under its influence on 
several occasions. Without being granted the benefit of a canonical 
trial, or even a thorough investigation of the charges preferred 
against him, the accused Titius is suspended by his bishop and or- 
dered to repair to a monastery and remain there till he (the bishop) 
sees fit to recall him. Under protest Titius submits, complies with 
the bishop's command, and spends a considerable time in a monas- 
tery, where he is obliged to defray his own expenses. 

Now it is asked: 

i. Had the bishop a right to suspend Titius without a previous 
canonical trial or thorough investigation of the charges brought 
against him? 

2. Had the bishop a right to order Titius to a monastery without 
previous trial or canonical procedure? 

3. Had the bishop a right to compel Titius to defray his own 
expenses while in the monastery ? 

Solution. — 1. Had the bishop a right to suspend Titius without 
canonical trial or other legal formality ? 

Prior to the Council of Trent no ecclesiastic could be punished by 
his bishop, v. g., suspended from the exercise of his orders, except 
upon a regular or formal criminal trial as prescribed by the sacred 
canons. This was the general law of the Catholic Church up to the 
time of the Council of Trent, and admitted of no exception what- 
ever, save only in the case of murder, heresy, and in the case of 

248 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 



249 



regulars, who for secret crimes might be restrained by their supe- 
riors from receiving higher orders even without trial. Stremler 
(Eccl. Punish, p. 310) says: Before the Council of Trent, a bishop 
could not restrain any unworthy candidate from holy orders, nor 
punish a delinquent ecclesiastic, except upon a formal or an ordi- 
nary criminal trial, as established by the law of the Church and con- 
tained in the decretals. No crime could be punished, except when 
the delinquent had been judicially convicted, in a canonical trial 
conducted with the formalities established by canon law for pro- 
ceedings in criminal causes." 

The Council of Trent, in its 14th session, chapter I, de Reform., 
introduced in this respect, a complete and radical change in the ex- 
isting discipline of the Church. For in its 14th session the Coun- 
cil enacted that in certain cases bishops could inflict punishment uppn 
their delinquent ecclesiastics without previous trial or judicial for- 
mality of any kind whatever. By virtue of this power the bishops 
may in certain cases condemn an ecclesiastic, without giving him 
an opportunity to defend himself, ex causis nullo judicio probatis, 
sed in sua (episcopi) conscientia perpensis. . . . Ad hanc suspensio- 
nem imponendam nee formae judiciales, nee eanonicae admonitiones 
requiruntur (Instr. Congr. de Prop. Fide, 1884). This power of the 
bishop to suspend his priest without canonical trial or legal proced- 
ure, but simply for reasons known to him extrajudicially, and suf- 
ficient for his own conscience, is known in Canon Law as the power 
to suspend a priest, or other cleric in major orders, ex informata con- 
scientia. It was conferred on the bishops by the Council of Trent, to 
safeguard the dignity of the priesthood as well as the spiritual inter- 
ests of the faithful, and to eradicate evils that could not be reached in 
any other way. 

The bishop is not required to give any reasons to the priest whom 



25° 



THE CASUIST. 






he suspends, but he is required to give reasons to Rome, if appeal is 
taken to Rome. There lies no appeal from the suspension ex in- 
formata conscientia. That is, if the suspended priest takes an ap- 
peal to Rome, he does not thereby cause a suspension of the censure 
until a final decision is given by Rome. The only recourse for a 
priest in these circumstances is to observe the articles of his sus- 
pension, and appeal extrajudicially to the Holy See. A decreto 
suspensionis ex informata conscientia non datur appellatio, sed 
semper patet recursus extrajudicialis ad S. Sedem, suspensione in- 
terim in vigore pertnanente (Instr. Congr. de Prop. Fide, n. v. n 
and 12). 

There may exist among some persons a persuasion that this power 
of the bishops to suspend ecclesiastics without due process of law, 
or ex informata conscientia, was somehow abrogated for the United 
States by the III. PI. Council of Baltimore. Such persuasion is 
altogether unfounded. The power of a bishop to suspend his priest 
ex informata conscientia, in the United States, is reaffirmed by the 
Council of Baltimore and by the instruction issued by the S. C. 
de Prop. Fide, to the American bishops, October 20, 1884. 

Thus the S. C. de Prop. Fide expressly says: 

Quod vero pertinet ad remedia repressiva seu poenas animad- 
vertant Ordinarii in suo pleno vigore manere remedium extra- 
judiciale, ex informata conscientia, pro occultis reatibus a S. Concilio 
Tridentino constitutum, sess. 14 chap. 1. de Reform. 

(Appendix, III. PI. Coun. Bait.) 

Titius was guilty of crimen occultum. He was well under the 
influence of strong drink on several occasions. He is liable to give, 
if he has not already given, grave scandal. He is already sacrificing 
the dignity of the priesthood and jeopardizing the spiritual interests 
of the faithful. The bishop is perfectly within his rights when he 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 



251 



suspends Titius ex informata conscientia, without previous warn- 
ing or canonical trial or other legal formality. Justam ac legitimam 
causam suspensioni ex informata conscientia, praebet crimen seu 
culpa a suspenso commissa. (Instr. Cum Magnopere, Oct. 20, 1884.) 

The suspension may not be inflicted, ex informata conscientia, in 
perpetuum, but only for a certain period of time, or until the delin- 
quent manifests sufficient signs of amendment. 

Stremler (p. 329) says that no general rule can be laid down re- 
garding the duration of the suspension; but he thinks that two or 
three months are a long time and that the suspension should rarely 
last longer. Only very exceptional circumstances would justify a 
suspension to last six months. The suspension ceases without other 
formality at the death of the bishop who inflicts it, but whether it 
also ceases in the case of the transfer or resignation or removal of 
the bishop imposing it, Fr. Smith says, is not so certain. 

2. We proceed now to the discussion of the second question, 
namely : Had the bishop a right to order Titius to a monastery to do 
penance without giving him the benefit of a canonical trial? 

In the Instruction Cum Magnopere of the Propaganda to the 
bishops of the United States, October 20, 1884, concerning the man- 
ner of proceeding in criminal and disciplinary causes of ecclesiastics, 
we read: 

I. The Ordinary is bound, by virtue of his pastoral office, dili- 
gently to look after the discipline and correction of ecclesiastics. 
Hence he should watch assiduously over their conduct, and make 
wise use of the remedies established by the canons, either for the 
purpose of preventing or doing away with abuses which sometimes 
creep in among the clergy. 

II. These remedies are of two kinds : some are preventive, others 
repressive. The former have for their object the prevention of evils, 



252 



THE CASUIST. 



the removing of causes of scandal, and the avoiding of voluntary 
proximate occasions of sin. The latter are established for the pur- 
pose of recalling the delinquent to the path of duty, etc. 

III. The application of these remedies is left to the conscientious 
discretion of the Ordinary, provided, etc. 

IV. The following are the chief preventive remedies : spiritual ex- 
ercises, etc. 

V. Before they are imposed upon any one, the facts calling for 
them must be verified in a summary manner, etc. 

Now in the case of Titius, the bishop acted within the provisions 
of this Instruction in applying a preventive remedy, namely, in 
commanding Titius to make a retreat in a monastery. 

"A bishop, therefore, has the right to impose a special spiritual re- 
treat upon an ecclesiastic who is the occasion of scandal, or who re- 
mains voluntarily in the proximate occasion of sin, and who conse- 
quently, though not yet guilty of crime, follows a slippery road 
leading to spiritual ruin." (Smith, Eccl. Law, n. 1746.) 

As space will not allow us to treat of this more fully, we refer our 
readers to Smith, Elements of Eccl. Law, and New Procedure, and 
Zitelli, Apparatus Jur. Eccl., etc. 

3. Did the bishop act within his power when he obliged Titius to 
defray his expenses while in the monastery ? 

We take for granted that Titius was ordained ad titulum mis- 
sionis. 

Some readers may be under the impression that the Third Plenary 
Council of Baltimore changed the status of priests ordained ad 
titulum missionis, with regard to removal, etc. The council did 
not change the status of the ordinary missionary priest. It did cre- 
ate irremovable rectors and made special laws governing their re- 
moval, but it reaffirmed the laws of the Second Plenary Council of 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 



253 



Baltimore, regarding all other priests ordained ad titulum mis- 
sionis. In the Instruction of the Propaganda to the American bishops 
issued in 1884, the title of which is: "De modo servando in cog- 
noscendis et definiendis causis criminalibus et disciplinaribus cleri- 
corum in Foederatis Statibus Americae Septentrionalis, ,, the laws 
of the Second Plenary Council of Baltimore, concerning mis- 
sionary priests, with the exception of the newly created irremovable 
rectors, are expressly stated to be still in force. 

Concilii Plenarii Baltimorensis II deer eta, n. 125, quoad naturam 
missionum, et nn. 77 et 108 quoad juridicos effectus remotionis mis- 
sionariorum ab officio, nullatenus innovata seu infirmata intelligun- 
tur, salvis Us quae recentius de parochis seu rectoribus inamovibili- 
bus constituta sunt (cf. Appendix, III. PI. Con. Bait., p. 292, 
XLV). 

If we refer now to the II. PI. Con. Bait., n. 125, we read : 

Parochialis juris, paroeciae, et parochi nomina usurpando, nul- 
latenus intendimus ecclesiae cujuslibet rectori jus, ut aiunt, inamovi- 
bilitatis tribuere; aut potestatem illam tollere seu ullo modo immin- 
uere, quam ex recepta in his provinciis disciplina habet episcopus 
quemvis sacerdotem munere privandi aut alio transferendi. 

And n. 77 of the same Council we are told that, as was decreed in 
the Provincial Council of St. Louis, in the year 1855, and confirmed 
by the Holy See : Sacerdotes quibus per Ordinarii sententiam sacer- 
dotii exercitium interdictum fuerit, nullum jus habent ad susten- 
tationem ab eo petendam, cum ipsi se sua culpa missionibus operam 
navandi incapaces reddiderint. 

The American bishops proposed the following Dubium to the 
Congr. of the Propaganda : 

Utrum et quomodo declarandum sit, sacerdotes titulo missionis 
ordinatos, qui se indignos rediderunt sacri ministerii exercendi, hoc 



2 54 



THE CASUIST. 



titulo privari; neque Ordinarium teneri ad sustentationem Mis prae- 
bendam. 

The Sacred Congr. answered on Feb. 4, 1873 : 

In casu, prout exponitur praevia declaratione ejus modi sacerdoti 
ab episcopo facienda, et quamdiu praedictus sacerdos in sua prava 
vivendi consuetudine perseveret, nullum exhibens sincerae respiscen- 
tiae signum, episcopum non teneri ad sustentationem Mi praeben- 
dam. (Zitelli, Apparatus Jur. Eccl. de tit. Ord., p. 352.) 

Strictly speaking, therefore, the bishop had a right to require of 
Titius that he defray his own expenses while in the monastery, since 
Titius, by his own fault, forfeited his living, his missionary title ad 
honestam sustentationem. If, however, Titius have no means to de- 
fray his own expenses, the bishop will provide means ad neces- 
sariam sustentationem, that is, the bishop will provide what is neces- 
sary for life, but not what would make life comfortable and pleasant. 

If the bishop knows that Titius has means of his own to procure 
the necessaries of life, then the bishop is not obliged to defray any 
of Titius* expenses while Titius is accomplishing his penance. 
Stremler says : 

"For tile rest, dismissal from benefice always leaves to the eccle- 
siastic who is dismissed the right to the means of subsistence. The 
ecclesiastical judge should assign to the cleric who is deprived of 
his benefice, and who has no other means of subsistence, an alimen- 
tary pension, or keep him in a monastery, according to the gravity of 
his offense, and not allow him to tramp about, deprived of all means 
of living. For, say the Sacred Canons : Paupertas cogit ad turpia. 



LVIL THE USE OF MORPHINE * 

Question. How is the use of morphine, or the morphine habit, 
to be considered from the moral standpoint? 

Answer. 1. The use of morphine can not be absolutely prohibited 
as contrary to morals, when it is merely a question of allaying ner- 
vous excitement, or of alleviating pain. But in view of the imminent 
danger of its misuse and the bad effects it is apt to produce, mor- 
phine preparations should be used only by direction of a conscientious 
physician. 

2. The excessive habitual use of morphine is without doubt sinful. 
Its excessive use will become grievously sinful, even a mortal sin, in 
cases where it works serious injury to bodily health, or where, on 
account of the pleasure and comfort it affords, a complete intoxica- 
tion, temporary deprivation of the use of reason is thus produced. 
The latter excess would render the solitary case a mortal sin ; in the 
habitual excessive use the mortal guilt is found in the consciousness 
of the injury which the continuous consumption of the drug will 
work, so that in the case of a determined breaking off of the habit, 
an occasional temporary relapse into the use may be dealt with 
leniently. 

3. If the use of the drug does not reach the degrees mentioned 
under No. 2, then the excessive use, although sinful, is not exactly 
a mortal sin. 

4. With those dangerously sick, when death is approaching, the 
use of morphine for the purpose of stupefaction, even if done to alle- 
viate pain, can not be morally justified, unless it is intended to pro- 
duce refreshing sleep or as an anesthetic in a surgical operation. 
Otherwise, to deprive the patient of consciousness so shortly before 



*By A. Lehmkuhl, S.J. 



255 



256 



THE CASUIST. 



death must be looked upon as an ordinary shortening of life, which 
I am not obliged to oppose, if some one undertakes to do it in good 
faith in order to prevent greater evils, but in which I should not 
be allowed to consent or assist. 






LVm. THE VOW TO ENTER AN ORDER * 

Paul* a college-graduate, has taken a vow, from religious motives, 
to enter an Order. In fulfilment of his vow he entered an approved 
congregation, and after passing a few weeks in the novitiate he 
comes to the conclusion that his health will not stand the strain of the 
many spiritual exercises and tasks prescribed in this community, and 
he leaves of his own accord. 

Question : Has Paul satisfied the obligations of his vow ? 

A vow in general is a particular law which the votary imposes upon 
himself, for the glory of God, and it must for this reason be inter- 
preted according to the spirit that prevailed in the taking of the 
vow. There ensues for Paul, therefore, the following rules govern- 
ing the fulfilling of his vow. 

1. If he has not expressly intended to enter an Order sensu stricto 
with solemn vows, then his vow is fulfilled by entering an approved 
congregation with simple vows, so the Doctors universally teach, and 
in that case the votum ingrediendi religionem does not belong to 
the vows reserved by the Pope. 

2. With regard to the time the vow is to be fulfilled soon if the 
obligation is present and the opportunity given, and this applies espe- 
cially to personal vows, among which belongs the vow of entering 
the religious state. Hence St. Alphonsus says (Homo Apostolicus) : 
"If the vow is perpetual, such as entering the religious life, then the 
theologians teach that one sins grievously if the fulfilment is delayed 
more than six months without just cause," and in his Moral The- 
ology (lib. Ill n. 221) he adds: Consentit etiam Sporer si vovens 
excedat aetatem 40 annorum. Censent tamen cum Tamburino, excu- 
sari a tnortcUi juvenem 15 vel 16 annorum, qui differt per tres vek 

♦By J. Schwienbacher, CSS R 

257 



i 



258 



THE CASUIST. 



quatuor annos: quia (ut dicunt) hoc tempus videtur parva materia 
respectu ad servitium totius vitae. Sed huic non omnino acquiesco, 
nisi adsit justa causa dilationis. Such causae justae are there given 
by way of example. 

3. Concerning our chief question, Paul's leaving the order, the 
vow to enter an Order imposes the obligation, under penalty of 
grievous sin, of employing a moral diligence (not an extraordinary 
or supreme effort) to obtain admission into an Order, in which at 
least the essential rules are observed, to enter within due time, to per- 
severe faithfully in the same, and when the vocation has been proved 
to become professed in the Order. This general rule finds in our 
case its practical application in the following manner : 

I. Paul is not allowed to enter an Order, in which the discipline 
"quoad observantias principaliores" has become lax. (St. Alph: lib. 

IV, n. 72.) 

II. According to the intention of the votary St. Alphonsus dis- 
tinguishes in the vow before us three cases, to which correspond 
different standards of obligation. (Comp. Homo Apost. v, 34.) 

In the first case the votary merely obliges himself to an earnest 
trial of the religious life. In this case the difficulties confronting 
Paul excuse his action and should they cease later on, he will not be 
obliged to return because he has fulfilled his vow by making an 

earnest trial. 

Of the second case the Saint says: "If any one vows to make 
profession, he must set about doing so even under great difficulties 
unless the religious life becomes absolutely unbearable for him." 

The third case, which is to be supposed in our vow unless the first 
or second are positively ascertained, is according to St Alphonsus as 
follows : "If a vow is simply made to enter an Order, one is obliged 
to enter and remain therein, and it would be a grievous sin to 



. 1 



THE VOW TO ENTER AN ORDER. 



259 



leave again, without just cause. It would be considered a just cause 
for leaving, if one found a manner of living which exceeded one's 
strength, or if one had to suffer great and prolonged sadness." 
Thus the Saint. 

Now this just cause for leaving is present in the difficulties which 
Paul discovered, provided they were really insurmountable for Paul, 
and for this reason he is not blameworthy, especially if, to avoid 
self-deception, he has sought the advice of an experienced con- 
fessor. With justice Gopfert, however, adds to this the provision : 
"Should the just cause cease to exist, one must return to the order," 
for in such case the fulfilment of the vow would no longer be mor- 
ally impossible. The same authority, however, remarks that "the 
vow is always subject to the condition that the Superior must accept 
and retain the votary." 

III. If Paul in his vow expressly intended a certain Order, and if 
the fulfilment of this vow is morally impossible in regard to this 
order, he is of course not obliged to enter any other Order. If, on 
the contrary, he did not intend any Order in specie, he is, if after 
prudent counsel these difficulties are not to be looked for in some 
other Order with discipline, obliged to seek admission there, but 
after three or four unsuccessful trials, he may safely remain in the 
world, as Marc, n. 2140 (2) in a similar case justly remarks, because 
in such case the fulfilment of the vow may be looked upon as im- 
possible. 

IV. In conclusion the following rule may be quoted, found espe- 
cially in early authorities : "It should be observed that the one who 
has vowed to enter an Order and has failed to gain admission in 
the communities of his province, is not obliged to seek admission 
away from his country. If a woman she is not obliged to leave her 
native place if there are convents there" (Homo Apost. v. 34). 



260 



THE CASUIST. 



The reason adduced is that as a rule it can not be presumed that 
the votary intended to bind himself for such a sacrifice. Lehmkuhl 
comments on this in view of our modern circumstances: "Quod 
auteni antiquitus dixerunt, pro nostri temporis circuntstantiis non 
universim admiserim, nisi peculiar es exstiterint difficultotes." (Casus 
Consc. vi, n. 294.) 



LIX. RESTITUTION ON ACCOUNT OF INCENDIARISM. 



A fire broke out in a village which partly destroyed a certain house 
of Mr. N. N. The owner was insured, but nevertheless suffered a 
loss of about $4,000, which was all the harder for him to bear, as 
he, after toiling and laboring throughout the entire year, at its end 
considered himself fortunate if he was not in debt, there being no 
capital or savings. How the fire started, whether caused by negli- 
gence or by some malicious hand, could not be ascertained. Some 
time had elapsed when there came to the confessional of Father 
Setnpronius a woman who confessed having been the incendiary, in 
about this fashion : "Your Reverence, I was the incendiary ! I set 
fire to the property, and did it out of revenge because the farmer 
had given me notice to leave. I regretted it immediately, and even 
attempted to put out the flames, but it was too late. I know that I 
have committed a great sin. It gives me no peace, day or night, and 
I am ready and willing to make restitution as far as lies in my power. 
Of course I can not make up the loss entirely, as I am only a poor 
servant-girl. I have saved so far $400, this I will relinquish no mat- 
ter how hard it is to do so. But, Reverend Father ! what shall I have 
to do with my future savings? I can save yearly eighty or ninety 
dollars. If I could keep this I should have a prospect of marrying. 
If, however, I must sacrifice all my earnings, I can never think of 
marrying, and shall eventually become a burden upon the com- 
munity. Still I know that I have sinned grievously, and will abide by 
what your Reverence says, if only I may clear my conscience of this 



sin. 



ft 



What answer will Fr. Sempronius have to give to this penitent, 
whom we will call Pelagia, so that the strict requirements of justice 

261 



f 
1 



262 



THE CASUIST. 



RESTITUTION ON ACCOUNT OF INCENDIARISM. 263 









and restitution may be complied with, and also that a too difficult 
burden may not be laid upon Pelagia, which, though lived up to in her 
present grievous remorse, would later be found impossible to bear? 

The answer is really very simple. It is evident that Pelagia, sim- 
ply because she was after her unfortunate deed immediately seized 
with contrition, and because of the fact that she sought to extinguish 
the fire, is not excused from restitution. At the moment of causing 
the harm, she was conscious of the injurious consequences of her 
action, and hence her act must be considered as morally voluntaria 
and therefore grievously sinful. As the same was also causa efficax 
damni, all the requisites for the obligation of restitution are present. 
But according to the moralists the damnfficans is wholly or partially 
excused from restitution when, and for as long as there would arise 
for him a notabiliter greater damnum than that which the damnifi- 
catus himself has suffered. (Alph. IV, n. 697.) 

Let us examine if this is not Pelagia's case. All she has with 
which to make restitution are the savings from her wages. As re- 
gards the $400, which she has laid aside, one could not oblige 
Pelagia to part with the entire sum at once, for in case of emergency 
she would be left wholly without means. How about her future 
savings? Will she be obliged to give them all up for restitution? 
First of all Pelagia is entitled, ex jure naturae, to lay aside so much 
of her savings, that in her old age, in case of inability to work or 
other impediments, she may be able to support herself. No one can 
or should expect of her to deprive herself of the most necessary 
means in order to make restitution, for otherwise she would become 
a burden to the community and lead a miserable existence. That 
would be nimis durum! And why, in conclusion, should a thna 
party — namely, the community, be made to contribute toward a res- 
titution which is strictly a matter ad personam for Pelagia? In 



examining to what extent Pelagia should apply her savings in 
making restitution we must furthermore take into consideration the 
following circumstance. If Pelagia can not retain her savings, then 
she will have little hope ipso facto of winning the security and pro- 
tection of wedlock; for if she has not at least some money it will 
be a hard matter for her to find some one to marry her. In her 
savings alone she has a possibility of entering the married state such 
as she desires. Though the duty of making restitution will not 
cease for Pelagia in the married state, she would presumably be 
able to do little or nothing toward making good the harm she has 
caused. The requirements of household and motherhood would 
probably demand the little that she might be able to earn herself. 
Must she on this account renounce all idea of marrying? Is not 
Pelagia entitled ex jure naturae in the event of a chance offering 
itself ? Even the ecclesiastical marriage laws know of no prohibition 
in our case. To remain unmarried for life, a state for which she 
had neither inclination nor vocation, would be expecting something 
akin to heroism on Pelagia's part, arid a renunciation of the married 
state would without doubt be a far greater incommodum than the 
damnum to the injured party if in the married state she is unable 
to make further restitution : besides, there would be the dangers to 
her soul if unwillingly she were made to lead a life of celibacy. There 
would therefore be a damnum altioris ordinis present in consequence 
of which Pelagia would even be in conscience bound to enter into 
matrimony, if there was a possibility of her doing so. 

Hence there apply in our case the principles "Nemo tenetur resti- 
tuere cum suo valde majore detrimento, quam sit creditoris com- 
modum" (Kutschker: "Doctrine of Restitution"), and " Bonum in- 
ferioris ordinis restituendem non est cum detrimento boni superioris 
aeque gravis" (ibidem), inasmuch namely as matrimonium belongs to 









264 



THE CASUIST. 









a higher order of good than the mere material bonum which the 
injured farmer would receive if the persona ad cotnpensationem obli- 
gata did not enter the married state. If therefore the obligation of 
restitution can not be insisted upon to the extent that Pelagia must 
on that account renounce a natural right, such as the married state, 
then one must also allow her the means necessary to obtain this 
natural right. In other words, Pelagia can not be bound to devote 
her future savings to restitution to such an extent that because of it 
she can not hope for a possible matrimonial alliance. Nay, more, if 
one reflects how trifling her savings are in reality — what are eighty 
or ninety dollars a year ? provided of course she avoids all unneces- 
sary outlay — one could ask her at most to give up a trifling part, or 
more probably, none whatever, from these small savings so long, at 
least, as there is a probability of her getting married. Should Pelagia 
however not enter the married state, she would only be called upon, 
as we have already mentioned, to deprive herself of so much of her 
savings, past and future, that she will not be left entirely without 
means in her old age, or in the event of inability to work. If she 
should possibly have poor parents to support besides herself, then, 
of course, this natural duty of filial affection would take the place of 
the duty of making restitution. In the event of Pelagia's ever be- 
coming possessed of considerable means, by inheritance, for in- 
stance, she will, of course, be obliged to use such moneys for restitu- 
tion in so far at least as she does not necessarily require them for her 
own needs. 



LX. IN REBUILDING A PARISH CHURCH MAY THE 

NAME BE CHANGED ?* 

In a certain parish, composed chiefly of working-people, the 
church was found to be too small, and a new building was impera- 
tively necesssary. From many quarters the wish was expressed that 
the new church should be dedicated to St. Joseph, patron of the 
working classes, particularly because the patron saint of the church 
is a saint little known. May the title of this church be changed ? 

Ever since the time of the apostles every church receives a name, 
as does man in Holy Baptism. It is self-evident that the patron of 
a place or of a country has nothing to do with the title of a church. 

Churches may be dedicated to the Most Holy Trinity ; to Christ ; 
or to one of the mysteries in His life, as, for instance, the Transfigur- 
ation ; the Blessed Virgin and events from her life, such as the An- 
nunciation ; the Angels and Saints. A church can not be dedicated 
without special permission from Rome to a servant of God only de- 
clared Blessed or Venerable. Generally a church has only one patron 
Saint, but there are numerous cases where a church is dedicated to 
several Saints, as Cosmas and Damian, and even when their feasts are 
celebrated on different days, as Saints John and Francis. 

Rome adheres to the principle that the title or name of the church 
should not be changed lightly. It would indeed hurt the Christian 
feeling, if without any ado a patron saint, after having been regarded 
for centuries perhaps as the intercessor of a parish, should be 
suddenly deposed. The Apostolic See has nevertheless regard for 
the wishes of the people by consenting to the addition of a second 
name, or patron, to the old one. 

♦By A. Pachinger. 

265 



266 



THE CASVIS1 . 



IN REBUILDING A CHURCH MAY NAME BE CHANGED? 267 









Gasparri (de Euch. 1, 93) writes: "Titulus ecclesiae in getter e 
mutari non debet, id est neque alius addi, neque aliquis, si titulus 
multiplex est, supprimi neque alius substitui. Haec mutatio fieri 
potest, quando ecclesia diruta rursus extruitur, sed etiam hoc in casu 
maxime decet, ut idem titulus retineatur, et ad summum novus adda- 
tur, ut praecepit S. R. C. 16 Jan., 1885." 

In the year 1843 the question was proposed in Rome : Utrum semel 
assignato titulari patrono alicui ecclesiae, liceat episcopo rationabili 
ex causa ilium in alium immutare; et quatenus negative, enixe effla- 
gitat episcopus, ut ex apostolico indulto haec sibi facultas in casu 
elargiatur. The answer was: ad 1. non licere: ad 2. pro gratia as- 
sumendi S. Annatn in contitularem cum S. Andrea Apostolo. 

In Rome the question introduced at the beginning has been before 
decided that : The old title is to be retained, and a new one can be 
added to it. Gasparri introduces three such decisions (1. c. p. 92.) 
and summarizes the result in these words : 

"S. C. C. censuit, translata ecclesia parochiali in aliam recenter 
erectam, titulum antiquum esse retinendum et ad ecclesiam subro- 
gatam esse transferendum, sed addi posse titulum secundum/' 

Important is the observation of this famous canonist : "Quando ex 
facto S. Sedis novus titulus antiquo superadditus est, antiquus suas 
praerogativas non amittit, et omnes tituli habendi sunt aeque prin- 
cipales. Episcopus titulo existenti alium addere, citra novam eccle- 
siae dedicationem, auctoritate propria non potest! 9 

In our case the pastor can therefore safely elect St. Joseph as 
contitularis, asking the Bishop, at the dedication of the new building, 
to add this new name to the old one. The previous patron saint must, 
however, be retained, and his feast day is to be observed as heretofore 
according to the rubrics ; the new one, now aeque principalis, will be 
treated by the parish priests in Breviary, and holy Mass, exactly the 



same as the old patron saint. "Si titulares Ecclesia* plures sunt, non 
per modum unius sed divisim, omnium festa propriis diebus ceie- 
branda sunt ritu indicato, dummodo sint omnes aeque principdes y> 
(I.e. 94.) 









LX1. MARRIAGE DISPENSATION IN CASE OF 

TEMPORARY VOWS.* 

The following case came up unexpectedly before Father Arcadius. 
A Monialis, whose temporary vows would have lasted about three 
months longer, and who, in order to marry, had secretly left the con- 
vent, applied to him for dispensation. Arcadius resolves that this 
is an impedimentum occultum; and makes application to the Peni- 
tentiary Apostolic, enclosing sixty dollars, and asking for a dispen- 
sation. No answer came. Then he telegraphs, prepaying the an- 
swer ; still no reply. 

What is to be done in such a case ? The answer is briefly as fol- 
lows: 

i. Arcadius is in error. An impedimentum can be publicum noto- 
rium, either notorietate facti (when the fact is known publicly) or 
notorietate juris — i. e. through a judicial decree, or of course also 
through an act amounting to the same, an act which may be called 
before the forum of the (spiritual) tribunal. The public act of 
a profession of vows (though simple) on entering an Order, is 
certainly an act of this kind. Arcadius has no privilege to interfere 
in a notorious impediment, either as confessor or as private adviser, 
because it belongs before the ecclesiastical court ; indeed, if not pre- 
vented by the seal of Confession, he was bound to report the case to 
the ecclesiastical authorities. 

2. Arcadius, in his proceeding in this case, made a second mis- 
take: He wrote to the Penitentiary Apostolic. This congregation 
grants marriage dispensations pro foro interno, and also pro foro 
externo, where the poor are concerned. And even in their case, when 



♦By H. Rett, O.F.M. 



w 



268 



MARRIAGE DISPENSATION AND TEMPORARY VOWS. 269 



it is a question of a public impediment, the applicant's full name must 
be given. Arcadius did not do so; which was the third mistake 
therefore. At any rate this kind of a dispensation (from religious 
vows) would seem a matter for the forum of the S. Congr. Ep. et R. 

3. He enclosed money as fee in advance, a good deal more 
obviously than required, for answer and agentia, a fourth mistake. 
Rome never grants a dispensation if any payment is made in ad- 
vance and apparently with the intention of securing the dispensa- 
tion; nam: simoniam redolet! I recall a case where a religious, so 
as to be able to marry, wrote to Rome for a dispensation, and in- 
closed a sum equivalent to about fifty dollars in our money. The 
money was retained, of course (and properly so), but the answer 
came : Let the person apply once more for the dispensation, but not 
enclose any money ; then she will receive dispensation at once. 

4. The telegraph should not be used for the purpose of securing 
a dispensation for marriage, although it sometimes is done. 

The case here referred to was eventually disposed of in the follow- 
ing manner: It was reported to Rome expresso nomine, by the 
Bishop ; who subsequently received power to dispense the applicant 
from her vows, after which there was nothing to prevent the mar- 
riage. A congrua poenitentia was to be imposed. As penance for 
the breaking of religious vows, that should have lasted three months 
longer, monthly Confession and Communion for a period of three or 
four months will suffice. 



INTERRUPT 10 MISSAE FOR AN URGENT SICK CALL. 271 



LXII. INTERRUPTIO MISSAE FOR AN URGENT 

SICK CALL.* 

The curate, Father Christopher, was celebrating holy Mass at a 
station some eight miles distant from his church ; the Blessed Sacra- 
ment not being kept at this station. Suddenly he heard a commo- 
tion in the sacristy — and immediately the sexton comes to him at the 
altar, reporting in a whisper that an old lady in the village had had 
a stroke of apoplexy and was near death. The priest had just 
finished the Pater Noster, and considering that his Mass would be 
over within a few minutes, he continues in celebratione. Before the 
sumptio corporis he breaks off a particle from the large host, as the 
Viaticum for the sick person. The Mass finished he hurriedly re- 
sponds to the urgent sick call. 

Now the question : Did the priest do right in both points — namely : 
(1) In finishing the Holy Sacrifice, and (2) in fractione alicuius par- 
tis ab hostia maiori? If not, what ought he have done? 

Ad 1. We may here suppose two cases: 

a. If the moribunda is considerable distance from the chapel, 
where the holy Mass was being said, so that the priest realizes he can 
not return within tempus debitum missatn celebrandi ante meridiem 
to finish his Mass he should immediately consume the consecrated 
species omissis omnibus aliis (Cfr. de Herdt, Sacrae Liturgiae 
Praxis, torn. II. p. 3, pag. 237). 

b. If, however, he can return within the time he should interrupt 
the Mass, to continue it where he left off when returning from 
administering the last Sacraments. But in this case Sacerdos dili- 
gentissime curare debet, ut Ss. Sacramentum reverenter custodiatur, 
nisi consul Him existimaverit, Mud in tabernaculo occludere (de 
Herdt pag. 236 with quotation from Bened. XIV de Sac. 118). 



Still another possibility may be supposed. The priest may be of 
the opinion that he can return before the close of the time set for 
the celebration, ad continuationem missae, but it becomes impossible 
for him to do so, be it on account of a long General Confession, or a 
second sick call, or for some other good reason. De Herdt is of 
opinion that in that case the Blessed Sacrament should be reserved, 
to be consumed upon the following day post sumptionem s. san- 
guinis* 

Ad 2: Bishop Muller (Theolog. Moralis, III. pag. 223) allows 
"laico dare partem hostiae ma j oris." 1. In casu necessitatis, deficien- 
tibus hostiis minoribus, quando nempe s. viaticum esset ministrandum 
moribundo. 2. Si unus alterve communione reiiciendus non posset 
sine incommodo exspectare, usquedum in alia Missa consecratae sint 
hostiae minores. 

No. 1 is literally true here ; a doubt in regard to permissibility is 
completely excluded. A difficulty would exist where there were lack 
of a proper vessel or of a second corporal. If a pyx is not at 
hand, then the Blessed Sacrament should be conveyed in a corporal. 
If there is not even a second corporal, then there is nothing to be 
done, but to cover the chalice with the paten upon which the Sacred 
Host is laid, and let it remain upon the altar; the Viaticum to be 
carried in the corporal to the dying. For the sake of completeness, 
we will suppose the possibility of the priest being called to a mori- 
bundus, ante consecrationem. If he returns within an hour, he should 
continue the Mass where he left off; but if the interruption is of 
longer duration, "ordietur ab initio" (Alph. lib. VI, n. 354). 

♦Would it not be allowed, in this case of extremely rare occurrence, to con- 
tinue the Mass post tempus debitum, per epikiam, as there are exceptions 
made, for instance in Loretto? 



♦By J. C. Gspann. 



270 



A CASE OF RESTITUTION. 



273 



I 









In 






LXIII. A CASE OF RESTITUTION. 

Lucy, when a servant in a Jewish merchant's house, made a false 
statement before an insurance adjuster, which now troubles her 
conscience. A fire had broken out in an out-house, and in order 
that he might collect a larger sum, her master falsely declared that a 
quantity of clothing had burned, and he induces his clerk and Lucy 
to confirm his statement. The merchant is now a bankrupt, the 
clerk in comfortable circumstances, Lucy still without means and 
a servant in another family. The confessor imposes upon her the 
duty of restitution, because neither the merchant nor the clerk will 
make it. Lucy has nothing, and moreover, is not aware of the 
amount or to which company to make the restitution. The con- 
fessor promises to make inquiries and to let her know the result. 
Meanwhile he has scruples, and he asks whether he has acted cor- 
rectly. 

The obligation of Lucy to make restitution is plain in the case 
under consideration, and she shares this obligation with the clerk. 
One witness would not have sufficed, and Lucy therefore is made 
jointly responsible for the whole amount. If the merchant makes 
no restitution then Lucy and the clerk must refund the money with 
the right, of course, to make Levi reimburse them ; should the latter 
be without means, Liicy must bear half of the amount, the clerk 
being answerable for the other half ; the latter not paying, this part 
too would fall upon Lucy, of course, with the right of seeking in- 
demnity from the clerk. So, therefore, the decision of the con- 
fessor is right in principle. Now let us see whether his practical 
proceeding is to be sanctioned. 

272 



First of all it appears to us as not well, nor advisable in general, 
to undertake such an inquiry. There is always present the danger 
to the seal of Confession. Moreover, the penitent's ready acquies- 
cence presumed, the matter is an unpleasant one and may lead to 
unforeseen complications. 

There is, moreover, no necessity for such inquiry in our case. 
Lucy is without means, and can therefore not make restitution. 
Indeed, a way is easily found out of the difficulty. 

It is here the question of making restitution to an insurance com- 
pany. These companies exist and prosper by the premiums of the 
insured. The rate of premium is determined by the probable aver- 
ages of fires, without regard as to whether a fire is incendiary or 
not. The company rightfully seeks by clauses and searching exam- 
ination to avoid fraudulent claims, but can hot possibly prevent all 
fraud on the part of the insured. Hence in fixing the rate of pre- 
miums the company takes into account all these circumstances. 
It follows that the insured by their premiums are really made to pay 
for the fraudulent claims, and they consequently are the ones injured 
by fraud. 

Restitution is therefore really due to those paying the premiums — 
the insured. The number of the latter, however, is so great that only 
an infinitesimal part is borne by the individual. Their names are un- 
known. Therefore it appears that restitution in our case may be turned 
over to the poor. By so viewing the case (cf. Lehmkuhl I. 11, 34), 
the difficulty for Lucy is easily solved. She has the honest intention 
of making restitution, but through her poverty is unable to do so. 
For this reason the confessor may direct her to discharge her duty 
by giving alms to the poor, of which she herself is one, and thus 
to pacify her conscience. The merchant and the clerk, of course, 
remain under obligation of restitution. 



LXIV. LAY CONFRATERNITIES FORBIDDEN 
IN CONVENT CHAPELS.* 

The School Sisters of St. Francis in X. wish to have a pious 
confraternity established in their consecrated public chapel as an 
incentive to a growth of devotion among the people. The superi- 
oress applies to a priest asking the question: May lay confrater- 
nities be established in convent-churches, or chapels? 

The question is not a new one, for such early authors as Lucius 
Ferraris in his "Bibliotheca prompta" and others, have answered 
the same in a negative sense, referring to the interdiction of the 
Sacred Congregation Episc. et Regul. of April 6 and November 
6, IS9S, of March 15, 1599, and of May 5, 1645: "Confra- 
ternitates laicorum erigi et institui non possunt in Ecclesiis Monia- 
lium." (Ferraris : tit. "Confraternitatis," Art. c. I. n. 38.) This pro- 
hibition was repeatedly renewed later, and even in recent times, and 
the answer of the Sacred Congregation of Indulgences of February 
29, 1864, makes it plain that the same concerns all chapels of orders 
as well as religious congregations of women. With great empha- 
sis, this prohibition was again renewed in the letter of the S. Congr. 
Episc. et Regul. of the 22A August, 1891, to the Bishop of Foligno, 
in the words: "Non placet Sac. Congregationi, ut in Monasteriis 
Monialium sub quovis titulo instituantur Confraternitates laicorum, 
ad tollenda quamplurima, quae exinde oriri possunt, incommoda; 
imo praecipit, ut erectae tollantur, secus transfer antur." 

That these decisions are not merely limited to individual cases and 
convents, may be learned, among others, from P. Beringer's work 
on Indulgences, approved by the Sacred Congregation of Indul- 
gences, which enjoys a great reputation. There it is stated as gen- 



*By J. Schwienbacher, C.SS.R. 



274 



LAY CONFRATERNITIES IN CONVENT CHAPELS. 275 

eral rule: "In churches or chapels of orders of religious women, 
whether religious communities in the strict sense of the word, or 
religious congregations, confraternities of laymen can not be estab- 
lished (II. T. IV. Sec. 4, III. n. 2.) The same principle we find 
proclaimed in the book about the arch-confraternity of Our Lady 
of Perpetual Help published in Rome, which in explaining that the 
same may be erected in every public church or chapel, states ex- 
plicitly "attamen eximendae sunt ecclesiae monialium, in quibus 
juxta plures Declarationes S. Congr. Episc. et Regul. institui 
nequeunt Confraternitates laicorum" (Pars III. cap. I. Sec. 55, II. 
n. 2). 

Exceptions from this rule are, according to Beringer, the League of 
the Sacred Heart of Jesus, and the Confraternity of the Immaculate 
Heart of Mary, for the conversion of sinners. Beringer, however, 
remarks that "In both these cases it appears only allowable that the 
nuns themselves and inmates of their institutions, also the pupils of 
such institutions, but not other lay people of either sex may belong 
to these confraternities." 

The ecclesiastical decisions in the matter do not warrant the pro- 
hibition to be extended to pious societies of all kinds. As, however, 
according to Beringer even the Sacred Congregation of Indulgences 
styles the same confraternities at times differently, as congregations, 
sodalities, pious unions, confraternities or arch-confraternities ; thus 
the scope of the word "Confraternity" is determined more from the 
object than from the name. A chief characteristic of confraternities 
consists, as Beringer observes, that they must be canonically erected, 
i. e., with ecclesiastical authority, at a certain altar or in a certain 
church, and for this reason must remain under guidance and control 
of that church, while the pious societies or unions, even though con- 
ducted by the clergy and enriched with indulgences, are as a rule, 



276 



THE CASUIST. 



only simply approved by the ecclesiastical superiors, not, however, 
canonically erected. 

A pious union, therefore, which has the characteristics, just men- 
tioned, of a confraternity, must not be erected in a convent 
chapel, no matter under what name. For pious associations, how- 
ever, which have not the characteristics of a confraternity, there 
ensues from the ecclesiastical prohibition of lay confraternities in 
convent chapels, the grave warning to be earnestly vigilant lest the 
zealous cooperation of the nuns in lay societies might open the 
door to the very improprieties which the Church is so anxious to 
exclude: "Ad tollenda quamplurima, quae exinde oriri possunt in- 
cotnmoda." (S. Congr. Episc. et Regul. 22, Aug., 1891.) 



LXV. CASUS MATRIMONIALIS PERPLEXUS. 

A certain newspaper, somewhat hostile to our creed, made much 
of the following news item : The marriage of Mr. P. and Mrs. P. 
was to take place in the parish of X. Mrs. P. had been divorced 
from her husband, who recently died. All the preparatory steps 
had been taken and there appeared to be no valid obstacle. When 
the bridal couple made their Confession, the bride informed the 
priest that for fifteen years she had been living in concubinage with 
the bridegroom, whereupon the priest became very angry, and after 
having given her absolution, he hurriedly left the confessional and 
made the matter known to the pastor. 

The latter sent for the bridegroom and informed him that he 
must get from the Bishop the necessary dispensation (the affair hap- 
pened in a diocesan city), otherwise he could not get married. 
The Bishop being on a journey, the marriage could not take place 
that day. Upon the Bishop's return the dispensation was most 
courteously granted. The newspaper joins to this item the ques- 
tion : "Why did the pastor, on an occasion shortly before, marry two 
persons under similar circumstances, without protesting? Could 
it depend upon the amount of the fee ? And far worse. The seal of 
Confession was broken." Thus far the newspaper. A correc- 
tion appeared in the Catholic paper of the place stating the case 
correctly as follows: Bride and bridegroom approached the Sac- 
raments on the morning of the wedding-day, and all preparations 
were made for the ceremony. The confessor advised the bride that 
she could not be married and directed her to go to the pastor and 
inform him that there was an impediment. The couple in fact did 
go to the pastor, who, however, told them to apply to the Bishop 

277 



278 



THE CASUIST. 



with the explanation that a marriage could not take place until a 
dispensation was received. The couple then proceeded to the Ordi- 
nary for the dispensation and as he was away from home, they sent 
a despatch after him, which, however, did not reach him. On his 
return, the following day, the Bishop readily granted the dispensation 
from the impedimento occulto. The couple took the document to the 
priest and were united in marriage. No fee was asked either for dis- 
pensation or marriage. 

That^the newspaper report had a malicious tendency is plain. It 
is equally plain that the seal of Confession was not violated and 
that money played no part. It may happen, likewise, that impedi- 
ments to marriage escape attention. 

If the bride had only shortly before become a widow, and the two 
had already lived together, the question must be asked whether the 
impedimentum criminis adulterii did not obtain. 

Let us leave that aside and turn to our main point. Did the con- 
fessor act rightly in directing the couple, when Confession was made 
immediately before the ceremony for which everything had been 
put in readiness, to make known to the pastor an impediment 
for which dispensation is obtainable, an impedimentum occultum, 
at that ? Decidedly not. The confessor in this case should have bid- 
den the bride to come back in about two hours, and in the meantime 
he himself should have proceeded to the Ordinary, to apply for the 
dispensation post absolutionem. And if this was by circumstances pre- 
vented, he should have performed the ceremony to avoid scandal. 
In that case the bridegroom was to be instructed to come to Confes- 
sion again in about a week's time. Meanwhile it would be possible 
to apply to the Ordinary and ask for approval of his conduct, and 
also for the faculty of dispensation. 



*) 



LXVI. TWO CONSECRATION CASES. 



■ 



[Ciborium extra corporale — super corporali.] I. A certain priest 
met with the following embarrassing accident. Before Mass this 
priest directed the sexton to place the ciborium, well-filled with 
hosts, upon the altar, so that he might consecrate them during the 
Mass. The sexton places the ciborium upon the altar, where the 
priest at the beginning of the holy service notices it, standing beside 
the chalice and outside the corporal. At the offertory the priest 
forgets to offer up also the small particles, and he likewise forgets 
at the consecration to place the ciborium upon the corporal and to 
uncover it. Hardly is the consecration over when he, to his utter 
consternation, catches sight of the ciborium, outside the corporal. 
What is to be done? Are the small hosts consecrated or not? Must 
he repeat the words of consecration absolutely, or only condition- 
ally? Only a few hosts are left in the Communion-cup, there is a 
considerable number of communicants, and this is the last Mass; 
this thought is deciding ; in his dilemma the priest repeats the for- 
mula conditionally, and then administers Holy Communion from this 
ciborium. To solve this case, we will in the first place answer the 
question, What conditions are necessary for the validity of the conse- 
cration ? 

For the validity of the consecration there is required, in the first 
place, as in the case of every Sacrament, the intention on the part 
of the dispenser to do as the Church does, and here a mere 
virtual intention suffices. Furthermore it is required that the proper 
matter be physically present; this is conditioned by the words hoc 
and hie; furthermore, that the matter be meant in individuo, where 
again the mere virtual intention suffices. The physical presence is 

279 



28o 



THE CASUIST. 



TWO CONSECRATION CASES. 



281 



naturally to be understood morally, corresponding to the meaning 
of the words and the nature of the function ; so, for example, a host 
concealed under the corporal, or enclosed in the tabernacle, can 
not be considered physically present; on the other hand, it is not 
essential that the materia be actually held by the hands, or that it 
must be seen, for the hosts in the ciborium may be covered, "nam 
contentum cum continente reputatur et moraliter praesentatur" 
(Laymann, L. V. Tr. IV. c. II.) 

In our case both conditions for the validity of the consecration, 
namely the physica praesentia materiae and the intentio ministri are, 
though only virtualiter, present ; the first condition, because the cibo- 
rium, filled with particles, was standing on the altar beside the cor- 
poral ; the second, because the priest, before Mass, and while vesting 
in the sacristy, had the actual intention to consecrate the small 
hosts, for he directed, for that purpose, the sexton to put the cibo- 
rium upon the altar, and when ascending to the altar he actually 
noticed it there. This intention formed directly before Holy Mass, 
continued virtually, as the celebrant in proof of the actual intention 
performed the ceremonies of Holy Mass. As the actual intention, 
formed before Holy Mass, virtually takes effect in the act of offer- 
ing, and as the liturgical act of offering relates to the actual materia 
of the offering, as well as to the particles, it can hardly be said 
that the intention continues virtually in regard to the materia 
primaria but not also in regard to the present materia superaddita, 
sen secundaria. 

Since therefore the conditions for validity are present, the cibo- 
rium appears to have been validly consecrated. Hence St. Alphon- 
sus (n. 25) teaches, quite generally, without excepting our case; 
non debet repetere consecrationem, qui minores hostias ad altare 
detulit, de quibus maiorem consecrans non explicite cogitavit nee 



detexit." Laymann also (L. V. Tr. IV. cp. II. n. 12) considers 
in this case the consecration valid, because both conditions praesen- 
tia physica and intentio virtualis are attendant. "Si sacerdos, ante- 
quam ad sacrificandum egregiatur, de consecrandis hostiis in altare 
positis (therefore not necessarily upon the corporal, because put 
there before Holy Mass) . . . admoneatur easdemque conse- 
crare proponat, postea vero omnino obliviscatur, censeri debent nihil 
omninus consecratae, cum in tali casu neque hostiarum praesentia 
neque sacerdotis intentio virtualis desideretur." 

The Salmanticenses hold (de Euch. cp. 4, n. 125), that the conse- 
cration is valid, if the priest has the hosts brought upon the altar 
but at the time of consecration forgot about them, and in proof 
they go on to say "quia intentio virtualiter perseverat ;" without 
making any distinction as to whether the ciborium stood upon the 
corporal or beside it. 

It is an instance of irregularity only that the ciborium was stand- 
ing outside the corporal, there can be no question of sin, because 
knowledge and intention were lacking. And yet it is just this cir- 
cumstance, which is claimed by some authorities to cancel the 
intentio virtualis otherwise present. These authorities admit under 
the circumstances of our case that the physical materia is present 
and also that the priest has virtually the intention, though the 
materia superaddita be forgotten at the consecration, and that 
consequently the consecration is valid, but only then, if the 
ciborium at the consecration stands upon the corporal; this 
they regard a conditio sine qua non. So Bucceroni (II. 
n. 511, 3) : "Valet consecratio, si quis ante sacrificium monitus fuerit 
de consecrandis hostiis iam super altari positis, etsi dum consecrat, 
earum non ita meminerit aut etiam ad oblationem non detexerit, modo 
sint praesentes in corporali, quia intentio praecedens virtualiter per- 



\ 






282 



THE CASUIST. 



TWO CONSECRATION CASES. 



2S3 



severat." These authors therefore make exception of the case, when 
the ciborium stands outside the corporal. But according to the 
Salmanticenses (de Euch. p. 4, n. 125), it is only "nonnulli" who 
make the exception : "dummodo sint super corporali," and their rea- 
son for making the exception is quia non est praesutnendus sacer- 
dos indebite et illicit e consecrationem facet e voluisse. (Salm. 1. c.) 

So also Aversa (de Euch. g. z. Sect. 2) non praesumitur sacerdos 
velle committere grave peccatum, quale esset ita consecrare. Like- 
wise Holzmann (II. tr. 3, cp. 2, art. 2) in his case holds that all 
six hosts present are consecrated even when the celebrant erro- 
neously supposes that there are only five upon the following gen- 
eral principle: . . . "sacerdos juxta ritunt ecclesiae (sicut reg- 
ulariter solet et debet, ita in casu particulari) censetur habere in- 
tentionem consecrandi totam materiam, quam habet praemanibus, 
aut quam tulit ad altare vel ipse vel alius de ipsius consensu, si sit 
licite consecrabilis." 

The argument advanced is therefore : one can not presume the tn- 
tentio consecrandi in the priest if a circumstance exists, unknown to 
the celebrant, which, if known to him, would prevent him from con- 
secrating, so as not to consecrate unlawfully. 

But this argument does not seem able to stand the test, because in 
its application and in its consequences it leads too far. 

It would certainly be grievously sinful to offer up the holy sac- 
rifice in an unconsecrated chalice, or with a badly broken host, or in 
wine not mixed with water at the offertory, or in wine which has 
soured though still valid material. If now one of these unlawful con- 
ditions were present without the priest being aware of it, it would 
have to be assumed according to the general principle above men- 
tioned that the consecration was invalid, "quia non erat licite conse- 
crabile, quia non praesumitur sacerdos velle committere grave 



peccatum/* The advocates of the above-mentioned principle, how- 
ever, admit the validity of the consecration in the cases named. 
Why, then, should the principle apply in a case when the ciborium is 
extra corporate, and not to the other forbidden conditions? That 
is not easy to understand. Such restriction would seem purely ar- 
bitrary. 

Nevertheless Roncaglia (de Euch. p. 2, q. 8) seeks to solve the 
difficulty by discriminating between the actual sacrificial materia 
as materia primaria, and the particles to be consecrated as materia 
secundaria seu superaddita; the priest intends at any rate the essence 
of the sacrifice of the Mass, notwithstanding a present but unknown 
defect; has, however, the intention only to consecrate modo licito 
the particles present in the ciborium, as materia secundaria, which 
is well reconcilable, as the essence of the Mass exists in its integrity 
without the consecration of the particles added thereto. Hence, ac- 
cording to this opinion, the sacrifice of the Mass would be valid with 
a fermented or badly broken host, with an unconsecrated chalice, with 
sour wine, with wine unmixed with water; the consecration of the 
particles, on the contrary, .would be invalid if the ciborium stood 
outside the corporal, if the extra hosts were of fermented bread, etc. 

Even in this restriction to the secondary materia it does not ap- 
pear as if the principle could be defended. 

Not to uncover the ciborium at the consecration would,, if it 
happened knowingly, be a grievous sin according to a few theolo- 
logians, and this is a condition which concerns the particles, there- 
fore, in this case, according to Roncaglia, the consecration would 
be invalid, at least in the opinion of those authors who regard the 
non-uncovering as grievously sinful. Yet in reality would even 
they doubt the validity of such a consecration ? Furthermore, let us 
suppose that the hosts contained in the ciborium are fermented, 









284 



THE CASUIST. 



which is forbidden sub gravi; the priest, however, has placed the 
ciborium upon the corporal ; in this case the validity of the consecra- 
tion will generally be admitted, whether the priest forgets about 
the particles at the consecration and therefore has only virtual in- 
tention, or whether by the uncovering of the ciborium he manifests 
his actual intention ; and yet it is here a question of the secondary 
materia! 

Or let us presume the following cases, so as to return to the case 
positio extra corporate, the pyxis stands outside the corporal, which 
the priest does not notice, and at the consecration he removes the 
cover ; or, the priest uncovering the pyxis moves it nearer, whereby 
its base slips under the edge of the corporal, so that the pyxis still 
remains outside the corporal ; in these cases no one will doubt the 
validity of the consecration, though we have here the forbidden 
case "extra corporate" and though it is here a question of secondary 

materia! 

Both these last-mentioned cases are distinct from our case only 
by the fact that the priest in the former has actual intention, and 
in our case merely virtual intention. 

This accidental distinction, however, does not actually matter, as 
both the actual and the virtual intention suffice for the validity ; in the 
opinion of those authorities there would have to be added to both 
kinds of intentions : sub intelligitur conditio, si sit licite consecrabile. 

If we sum up all these suppositions, we come to the following 
conclusion ; either the principle mentioned must be allowed to apply 
in its full extent or not at all, a middle course does not seem possi- 
ble; as however even the advocates of the principle do not let it 
govern universally, it seems as if this principle would have to be 
dropped as not tenable. 

Hitherto we have viewed this principle "non est praesumendus 



TWO CONSECRATION CASES. 



285 



sacerdos illicite consecrationem facere velle," from the outside as 
it were, namely, in its application and in its consequences ; if we now 
consider the same according to its nature and essence, it proves 
itself equally untenable.* 

According to this principle the proof of the invalidity of the con- 
secration in the case before us is taken "ex praesumpta intentione 
celebrantis" meaning: one can not suppose that the celebrant has 
simply the intention to consecrate under all circumstances, whether 
forbidden conditions exist or not, but it is rather to be supposed 
that he has the intention not to do anything at Holy Mass that might 
be a grievous sin, therefore only to consecrate (at least the materia 
secundaria) when the permissibility is endangered by no weighty 
qualifications. It is presumed accordingly that the priest has in a 
manner an intentio conditionata, in so far as he either in every 
single consecration of the particles makes this condition, or that he 
once and for all resolves upon this general intention : I shall never 
intend to consecrate, if a condition exists which if realized would 
make the consecration gravely unlawful. If a priest really has this 
intention the consecration is, of course, invalid if such condition be 
present, because the original intentio conditionata by the entering 
of the contemplated condition becomes an intentio absoluta. Where 
however such intention is lacking, then it must be held praesumpta 
ilia voluntas nulla est. 



♦In our argument we have pointed out that in regard to the transub- 
stantiation of the Eucharistic species the discussed principle in its logical 
application leads too far, and left aside the fact that this principle would 
also be made to apply to the other Sacraments, of which it would like- 
wise have to be held "non praesurnitur sacerdos velle committere grave 
peccatum" It is easily seen of what grave consequences it might be if the 
priest, in administering the Sacraments, Holy Baptism, for instance, had 
always the intention to administer the Sacrament only if no condition be 
present which is forbidden sub gravi. 



> 



286 



THE CASUIST. 



The question is, have priests really, as a general thing, the con- 
ditional intention only to consecrate, si sit licit e consecrabilef It 
would appear that hardly any priests make this general condition 
beforehand nor regularly in each single case, as otherwise the hesi- 
tation and the doubt about validity or invalidity of the consecra- 
tion, as soon as after the consecration an impeding condition is dis- 
covered, would be utterly inexplicable, for of course if they had 
really had this conditional intention, they would be aware of it, 
and there could be no doubt that the consecration was invalid. 

The reason why hardly any one has this conditional intention, is, 
because under these circumstances the non-observance of a pre- 
scribed form will be no sin, as in all these cases ignorantia is pre- 
supposed. Besides, one might be placed in considerable embarrass- 
ment by this conditional intention, if, for instance, no consecrated 
particles are at hand, when needed for the Communion of the faith- 
ful. It seems, however, that a distinction must be made as to whether 
it is a question of consecrating a few particles upon the paten, or 
whether the priest intends to consecrate a larger quantity in the cibo- 
rium. In the first case, the priest has the tacit intention only to con- 
secrate what there is contained upon the corporal, and for that reason 
the celebrant may properly consider as not consecrated, any particles 
found outside the corporal after the consecration. In the second case 
the priest has not the intention to consecrate only that which is lying 
on the corporal, when perhaps inadvertently he has let the ciborium 
stand outside the corporal. This distinction is evident by the nature 
of the proceeding, because the single particles are placed, from the 
beginning, upon the paten and therefore upon the corporal, while, 
on the contrary, the ciborium stands in the beginning outside the 
corporal, and only during the Holy Mass is placed upon it. 
It may be gathered from the above that the principle referred to is 



TWO CONSECRATION CASES. 



287 



hardly admissible and that much rather the following general tenet 
may be adhered to : It can not be held that a priest has not the in- 
tention to consecrate, when, without his knowledge, a condition, not 
interfering with the essence of the Sacrament, is present, which 
if knowingly tolerated would be a grievous sin. The universal 
practice of the Church supports this tenet, because whenever the 
valid administration of a Sacrament is questioned, inquiry is always 
made whether the substantial elements are present, but not whether 
also the accidental elements were observed, even if sub gravi pre- 
scribed. 

This terminates our speculative discussion, and the result is that 
the validity of the consecration under the conditions mentioned is 
far more probable than its invalidity.* 

The important question now demands our attention: What prin- 
ciple is to guide us in practice? Although the authorities differ in 
the theoretical explanation, yet they agree in their view of the 
actual instance, that the particles are to be again consecrated con- 
ditionally, as the validity of the consecration is not quite certain; 
it does not, however, follow that our speculative discussion is super- 
fluous, for it brings about a more profound understanding of the 
matter, and sheds a bright light upon obscure points. While St. 
Alphonsus designates the verdict of the invalidity of the consecra- 
tion as communis, the Salmenticenses as we have seen above de- 
clare that it is only nonnulli who argue the invalidity. Since, there- 
fore, the matter is not decided we may be guided in practice by 



♦Lehmkuhl considers as more probable in our case the Invalidity of the 
consecration because he holds that the priest's intention before the sacrifice 
of the Mass had probably been only "propositum particulas assumendi et m 
consecratione includendi." This verdict was not touched upon in the above 
discussion, for the reason that our purpose was chiefly to refute the argu- 
ment ex praesumpta intentione celebrantis. 









288 



THE CASUIST. 



TWO CONSECRATION CASES. 



289 



P. Lehmkuhl who writes : "Si igitur dubia manet consecratio, par- 
ticulae aut in sequenti missa sub conditione iterum consecran- 
dae sunt aut — id quod nisi aliunde incommodutn oriatur, maioris 
reverentiae causa praeferendwn videtur — post sumptionem sacri 
calicis ante ablutionem a sacerdote celebrante consumi debent." The 
latter, of course, is possible only when there are very few particles. 
St. Alphonsus also advises that since the matter in the practice 
remains always res dubia, it is reasonable to agree with what Pope 
Benedict XIV teaches, namely, that this ciborium should again be 
consecrated. 

From the above we may now review the priest's action in the 
present case. He did not do well in repeating the consecration 
conditionally during the same mass, for as the actual matter of sac- 
rifice has already been consecrated this repetition of the consecra- 
tion was equak to a consecratio sub una specie, which is never 
permitted, not even if the Viaticum were called for by a dying per- 
son. The celebrant should therefore have reserved the ciborium 
for another Mass, and the faithful should have been directed to 
come to Holy Communion upon the following day. 

II. On account of its similarity we will quote briefly a second case 
which, no doubt, has happened to many a priest: A priest orders 
the sexton, before Mass, to put the ciborium containing the hosts 
upon the altar, in order to be consecrated. At the commencement 
of Holy Mass the celebrant places the ciborium upon the corporal, 
beside the chalice, but during Mass he entirely forgets about it ; he 
does not uncover it at the consecration, hence at the end of Mass 
he takes it for granted that the ciborium has not been consecrated ; 
he has it carried back into the sacristy, in order to consecrate it the 

following day. 
The solution of this case is plain from our argument in the first 



case. According to St. Alphonsus (n. 217) it is sententia communis, 
that the consecration is valid if the ciborium stands upon the cor- 
poral even if at the consecration it is entirely overlooked. In 
reality all the requisites for its validity are present, namely the 
praesentia physica, and, moreover, the intentio virtualis, which the 
priest manifests sufficiently by having the ciborium brought to the 
altar, and by his placing it upon the corporal. There was, of 
course, an omission of a circumstance prescribed by the rubrics, 
namely, the ciborium was not uncovered, still the non-observance 
of this accidental circumstance does not interfere at all with the 
validity of the consecration; in the first place, moralists admit 
almost universally that it is not decreed sub gravi to uncover the 
ciborium and, secondly, even supposed it be an obligatio gravis, its 
wilful omission therefore a grievous sin, yet this would not preju- 
dice the validity, because the principle non praesumitur sacerdos 
velle committere grave peccatum, has according to our examination 
no weight. Hence it follows that in this second case the priest could 
have distributed these particles to the faithful in Holy Communion, 
without any doubt or hesitation. 









L3CVIL MARRIAGE BY PRIEST WITHOUT BANNS 

AND CONFESSION * 

Elvira, after a lapse of ten years since her last Confession, ap- 
peared in the confessional. In the interval she had been seduced by 
Alexis, and become a mother, had been civilly married to him, and 
borne him three children. Both husband and wife are highly es- 
teemed by the community, and no one knows of their merely civil 
marriage. Father Titus refuses absolution until Elvira shall bring 
her husband to have their marriage performed by a priest. Next 
day she appears with Alexis. The priest questions them in regard 
to possible impediments and finds that there exist none. He can not, 
however, induce Alexis, who agrees to the church ceremony for 
Elvira's sake, to go to Confession, he declares that sooner than to do 
so, he would do without the church ceremony. Thereupon Father 
Titus decides to make use of his authority to marry persons living 
in concubinage, without previous publication of banns; he hears 
Elvira's Confession, gives her absolution and then joins the parties 
in marriage before two witnesses. Did he do right ? 

Solution. Titus was quite correct ; it would have been wrong to 

have acted otherwise. 

The reasons for this decision are obvious. Of course the pastor 
is obliged to exclude as far as possible the unworthy from partici- 
pating in the Sacraments. Matrimony being a Sacrament of the 
living, requires a state of grace ; no one therefore can approach it, 
without having been previously purified from such grievous sins 
as he may have committed. Even if this can take place by an act 
of perfect contrition, yet the pastor ought to insist upon a good 
Confession, and the priestly absolution before marriage. But in 



♦By A. Lehmkuhl, SJ. 



290 



MARRIAGE WITHOUT BANNS AND CONFESSION. 291 

matrimony the priest is not dispenser; he is only an authorita- 
tive witness. To prevent its unworthy reception he is under obli- 
gation only in so far as his is the duty of direction and furthermore 
the duty to avoid becoming accessory to sin. This duty is, how- 
ever, superseded when weighty reasons are opposed to it. 

In our case there are the weightiest reasons why lawful marriage 
between Alexis and Elvira should take place, especially considering 
Elvira, who earnestly desires to be reconciled to God and who is 
anxious to have her relation to Alexis put in proper order. She is 
for her own sake, and for the sake of her children, entitled to a 
lawful marriage ceremony ; without such she would be compelled 
to leave Alexis, to throw herself penniless upon the world, and to 
see her children dishonored; or else she would remain in the near 
occasion of sinning. If, therefore, Alexis consents to the church 
ceremony, to make their marriage lawful, but without being recon- 
ciled with God, therefore on his part sacrilegious, the pastor, as 
well as Elvira, has sufficient reason not to refuse on his part the 
necessary material cooperation; indeed the pastor is bound to lend 
his priestly assistance in the marriage, if he otherwise fails to find 
any impediment. This question is in a detailed and thorough 
manner in Lugo's De Sacramentis in Genere, disp. 8 {sect 13 
and 14). 






-IN. 



"N 







COMPANY-KEEPING AND NEAR OCCASION. 



293 



LXVIII. THE NEAR OCCASION WITH RELATION 

TO COMPANY-KEEPING * 

Titius, a young single lad, has intimate relations with Ursula, a 
young unmarried person. He has repeatedly at night visited and 
sinned with her. There is ho prospect of marriage. He has prom- 
ised his confessor time and again to cease this sinful attachment. 
Coming to Confession again he tells Father Lucas, his confessor, that 
he has not sinned with Ursula since his last Confession, although he 
has several times visited her in her room at night. He gives posi- 
tive assurance that no further impropriety will take place and asks 
may he not associate with the person as with a sister? 

Father Lucas inquires: "Did you not have temptations during 
those nocturnal visits?" Titius: "I did have very strong temptation, 
but I would not consent!" Father Lucas: "Is there no possibility of 
your marrying one another ?" Titius replies in the negative, and men- 
tions he does at any rate not care to marry. Father Lucas then 
directs him to give up the acquaintance with that person, it being the 
near occasion of sin for Titius as well as for Ursula. 

Titius after some argument finally agrees to give up the person, 
but insists that he must visit her just once more at night in order 
to take leave of her, and also because he has many things to tell her, 
and that she has articles belonging to him which he wants to re- 
cover. Father Lucas asks : "What good reason is there to visit her 
only at night-time ? Why not by day ?" Titius: "It would not do 
by day, because we should get a bad reputation if seen together. 
Then, too, I can not arrange matters within the few minutes that I 
could be with her in day-time." Father Lucas then allows this last 
visit provided Titius gives his word of honor that this shall be the 



*By I. J. Braun. 



292 



last visit, that he will make it as brief as possible, and that he will 
take utmost care not to let anything improper happen. Titius prom- 
ises all this faithfully and parts with the absolution. 

Quaeritur. 1. Was Father Lucas obliged to demand that Titius 
give up his relations with this person? 

2. What is to be held in general of courtships and company- 
keeping? When are they allowed, when forbidden? 

3. Was Father Lucas correct to allow to Titius the taking leave 
of Ursula in her room alone and at night ? 

Anszver. 1. Father Lucas was strictly bound in conscience to for- 
bid to Titius his nocturnal visiting with the person ; for what good 
purpose can there be in a courtship with no prospect of marriage? 
Even if Titius for a brief period, since his last Confession, has not 
had improper relations with the person, it is obvious that due to 
his passionate and sinful affection for the person, he will fall again 
into sin, and that then the last state will be worse than the first. 
No one may expose himself voluntarily to the near occasion without 
necessity or important reasons. The visits at night to the person 
were in themselves grievously sinful because without necessity and 
reason. 

Courtship and company-keeping can not be condemned at ran- 
dom ; young people must have an opportunity to become acquainted 
before they become linked together for life. 

Courtship and company-keeping is, however, permissible only 
where there is the intention and the possibility of ultimate marriage. 
Where one or both of these is lacking, such relation must not be 
tolerated. In other words the one starting or indulging in a court- 
ship must have the will and the ability to marry the courted person. 

The so-called company-keeping {amoves, procationes) between 
persons of opposite sex is in itself not immoral, provided that there 



294 



THE CASUIST. 



exists between such amantes a proper and sincere intention, and a 
not too remote prospect of marrying, and provided further the rela- 
tion, the vicaria relatio, appears to be free of impropriety, tarn peccata 
carnis, quant occasionetn proximam tedium peccatorum excludens. 

In fact, in case of contemplated marriage, a previous consociation 
is judicious, and even necessary, because the young people should 
get knowledge of each other so as to convince themselves that they 
can respect and love each other. Gopfert in his Moral Theology 
writes : 

"What is to be thought in general of acquaintanceships, con- 
tinued association, visits, etc., between young persons of opposite 
sex? It can not be said that they are in themselves grievously sin- 
ful, but as a rule they are hardly anything else but the near occasion 
of grievous sin. Three conditions may be named under which they 
may be permitted, namely, that they should be begun for a good pur- 
pose, that the intercourse must take place within proper bounds, and 
that the necessary precautions be employed. 

1. They must be begun with a good purpose, in other words, with 
the intention to contract marriage soon, i. e., within a relatively 
short time, to be determined by reasonable judgment and according 
to the usage of conscientious persons. Owing to the danger of mixed 
marriages, inquiries should be made as to whether the other party 
is of the Catholic faith, and if not the person should be seriously 
warned against further intercourse and against a marriage promise. 

2. Intercourse shall take place only within proper bounds, i. e., not 
too frequent and not too long visits. A greater frequency may be 
allowed if the wedding is to take place in a short while, say in a 
month or two ; a lesser, the farther off the wedding seems to be. A 
greater frequency may be tolerated if the young girl is never left 
alone with the young man, but always under vigilant care ; a lesser, 



COMPANY-KEEPING AND NEAR OCCASION. 



295 



when the young people are usually left alone, or when the girl is not 
under the care of parents or relatives who watch over her. 

3. At these visits the necessary precautions must be taken : The 
young people must not be in each other's company without the par- 
ents' knowledge, and not without their silent or expressed approval ; 
as far as possible not be left alone, and they must fortify themselves 
against temptation by spiritual means. 

Where these three conditions obtain, such relations and courtships 
are not unlawful, even if a grave danger were present, because they 
are morally necessary conditions, for to demand that one should 
marry a comparatively unknown person would be unreasonable, and 
if one would not admit this reason the confessor would accomplish 
nothing else than that the young couple would now ex mala fide surely 
sin. For these reasons such visits may not be forbidden even if the 
parties fall into sin on account of them. The confessor will in such 
cases accomplish more, if he seeks by appropriate means to make 
the occasion a remote one ; if he, for instance, advises that they never 
be left alone, that some one be always present, even if only a little 
boy or girl ; in their presence grievous exterior sins could not (easily) 
take place; excessive marks of affection will not easily occur; he 
will counsel them to restrict demonstrations of affection in their 
frequency, duration and manner. If he does not improve matters then 
these people may be considered as in occasione proxima moraliter nee 
essaria absente, and relapsing continually into this same sin. It is 
to be considered which is more promising, to demand that the couple 
employ other and more effective means or that they omit entirely 
their visits, marks of affection, etc., and this is to be imposed upon 
them in Confession/' 

Gopfert has gathered in these directions nearly everything of 
moment that is to be found in the various standard authors about 



■ 






296 



THE CASUIST. 



COMPANY -KEEPING AND NEAR OCCASION 



297 



the lawfulness of courtships, etc. Difficult, yet incalculably import- 
ant for the priest, is the question : When are courtships prohibited ': 

Let us quote here, first of all, from the writings of Blessed Leo- 
nard of Port Maurice, who teaches on this subject : "It seems that 
much less severity and more indulgence is indicated in the occasions 
that are not in esse, as: visits to gambling-houses and places of 
amusement, of gatherings and inns, love affairs, etc., for according 
to the instructions of St. Charles, if the penitent promises to give 
them up, and if this promise comes from the heart, one may give 
absolution at least twice or three times, but only in the supposition 
that the confessor perceives such promise proceeds from a sincere 
and contrite heart. If the penitent has often before promised reform 
and has not amended his conduct then the saintly archbishop instructs 
that absolution be refused until the near occasion has been avoided. 

Among those occasions that are not in esse, there should be placed 
in the front ranks, in my opinion, the amorous alliances, which in 
our days are a stumbling-block for the young. Some are unwilling 
that there should be such an outcry against this unholy love, because 
they fear to disseminate wickedness where there is none, or that one 
might represent as a sin that which in reality is not a sin. They 
claim that the soul is given thus a false conscience and a false shame, 
and that it will plunge from sin to sin, at last unavoidably into sacri- 
lege. But alas ! the delusion of those perhaps unaware of the true 
license and wickedness of our days. 

I do not deny indeed that it may happen to an imprudent confessor 
who has asked an innocent girl whether she has a love affair and 
upon her admission, that he has been too strict with her, without first 
examining as to the nature of her affection. But this is a very rare 
case, which strictly speaking does not merit so much consideration. 
That which causes tears to the servant of God is the spectacle, that 



in our days depravity has burst its barriers, and overflowed in every 
direction, sweeping away with it the youth of the tenderest age. 
Alas, they say in sadness, why censure the few at their excess of 
zeal, and then be silent, even palliating the forbearance of so many 
others, who blindly absolve all those enamored who in their love 
affairs commit sins of all kinds ? 

It would be wrong to conclude that to be in love is always a sin, 
but it would be still worse to suppose that it is always innocent. If 
one is to judge relatively, and according to the things which gen- 
erally happen, it would be regarded as an incontestable proposition 
that love-making as it exists in these days is mostly a near occasion 
of sin. Would to God that this view was not proved by long 
and sad experience ! 

It is true that now and then the love of young persons is innocent 
in the beginning, but it turns evil as it progresses. They begin look- 
ing upon one another with pleasure, and affection turns gradually 
into passion, and passion plunges them into the abyss without bot- 
tom. Now give me your attention and answer me this question: 
Are we physicians of the soul ? And if so, how can we tolerate such 
a baneful abuse, which infects the world by so many marriages con- 
summated in darkness, with so many murders, with so much de- 
bauchery, with hatred, scandal and crimes of all kinds? For this 
reason there must be among us a firm determination to knit the 
sacred bond more firmly than ever, and to be uniform in postponing 
and even in refusing absolution to those who, found guilty, will 
not promise to give up their frivolous love affairs. In order to dis- 
cover positively whether love affairs are innocent or sinful, one has 
only to ask questions and small indeed will be the number of those 
where no disgraceful circumstance insinuated itself on part of either 
one or other, which renders such an abominable courtship absolutely 



298 



THE CASUIST. 



COMPANY-KEEPING AND NEAR OCCASION. 



299 



unlawful. In order, however, that you may have an example before 
you, that will render you cautious in questioning as well as firm in 
refusing absolution, when this be necessary, I will here repeat word 
for word, what the learned and devout Cardinal Pikus of Mirandola, 
Bishop of Albano, wrote in a pastoral letter which deserves to be read 
by every confessor: His words are: 

"We exhort all confessors not to absolve those who live in love 
affairs, if such are grievous and unlawful and if, after a third warn- 
ing from their confessors, they actually have not reformed. Give 
them to understand that if they do not amend, they must not expect 
to be absolved by you, neither can they ask this of any other confes- 
sors. 

The general cases in which love affairs may be regarded as 
absolutely unlawful, we now add here briefly, and for good reasons 
in Latin, so that on this point, as it should be in all others, your pro- 
ceeding may be uniform. 

/. Quandocumque ita fiat, etiam inter pares, et causa matrimonii 
ut intercedant oscula, vel tactus, vel amplexus, vel delectationes 
morosae, aut periculum labendi in quodvis grave peccatum. 

II. Quando fit inter eos, qui sunt disparis conditiones propter 
scandalum et periculum moraliter peccandi. 

III. Si fiat cum Mis, cum quibus impossibile est contrahi matri- 
monium, ut sunt uxorati, claustrales et in sacris ordinibus consti- 
tute turn quia non potest cohonestari talis amor fine matrimonii, turn 
quia intercedit scandalum et periculum labendi in culpas lethales. 

IV. Si fiat in ecclesia, turn propter irreverentiam, turn propter per- 
iculum audiendi sacrum sine debita attentione, turn etiam propter 
scandalum. 

V. Si adsit praeceptum patris vel matris aut tutoris rationabiliter 
prohibens talem amorem, quia etiamsi reliqua sint honesta, filii fam- 



ilias et pupilli tenentur in re gravi, ut sine dubia haec est, obedire par- 
entibus vel tutoribus sub poena peccati mortalis. 

VI. Quando clam fit et occulte, turn quia est expositus gravibus 
periculis et occasioni proximae graviter peccandi, turn quia quando 
ita fit regulariter exercetur contra voluntatem parentum vel tutorum. 
quibus filii et pupilli obedire debent. 

VII. Si tempore nocturno fiat propter scandalum et periculum 

peccandi, etc. 

VIII. Si fiat sub praetextu honestatae recreationis et relaxandi ani- 
mum, quia semper urget periculum et occasio proximo labendi ex 
longa mora, in qua habentur colloquia, mutui aspectus, protestatio 

amoris, etc. 

IX. Si eo modo fiat, ut ex se involvat periculum proximum oscu- 
lorum, tactuum, etc., etiamsi aliunde Me amor esset licite exercitus, 
quia est inter solutos et causa matrimonii; si, v. g. domi admittatur 
amasius, vel ita approximetur ut nemo non videat, adesse occasionem 
proximam tactuum, etc. 

X. Si amator vel amatrix animadvertat, complicem amoris esse 
graviter tentatum, vel alterum urgere verbis turpibus, vel alio modo 
ad inhonesta, etc., etiamsi alter complex nihil tentetur et nullam sen- 
tiat inclinationem ad peccandum; in quo casu erit utrique illicitus 
amor Me propter periculum proximum delectationis et scandali activi 
in uno, et passivi in alter 0, in quo graviter laedetur charitas erga 

proximum. 

XL Denique universaliter loquendo, quoties cumque ob causam 
amoris amator vel amatrix frequenter labitur in aliquam gravem 
noxam; tunc amor induit rationem occasionis proximae mali et est 

omnino illicitus. 

All these instances should be well considered and penitents who 
are dominated by the passions should be carefully questioned, using 









3°° 



THE CASUIST. 



due precaution ; then I should like to ask whether the above-men- 
tioned proposition is not incontestable, namely, that the love affairs 
in our day are, for the greater part, the near occasion of sin. And 
if this is so, how should not that penitent be warned who has been 
frequently exhorted and yet will not amend; who perhaps even 
quarrels with the confessor and expects to compel absolution from 
him? 

I summon before God's tribunal all those confessors who seek re- 
nown from dangerous complaisance by absolving all without reflec- 
tion ! They are the ruin of youth, indeed, of the world, for a badly 
brought-up youth is the formation of all evils and of all family dis- 
orders. ,, (Instructions for Confessors by L. of P. Maurizio.) 

Any one with experience in the confessional knows how true and 
important these words of Blessed Leonard are for every confessor. 

Gopfert in the book quoted above, writes briefly and admirably 
about this kind of love affairs as follows : When the parties in ques- 
tion do not intend marriage, or if they, on account of circumstances, 
will never be able to get married, or if only after a long time (this 
must be left to the prudent judgment of the confessor), then the 
keeping of such company is occasio proxima voluntaria absens (non 
in esse) and if the parties have been warned a few times by their 
confessors, without result, then they are not to be absolved until they 
obey. This is to be enforced so much more strictly if they have been 
sinning grievously one with another, or if their conduct has given 
scandal. In this regard the parents, too, especially the mothers, 
should be earnestly exhorted in Confession, so that they will 
not permit their daughters to be absent from the house at evening 
and night, to associate with young fellows, in which case sin is often 
not far off. This strict proceeding is all the more necessary if such 
acquaintances were already begun with no good intentions. It is sinful 



COMPANY-KEEPING AND NEAR OCCASION. 



3 01 



to accept presents, given with the purpose to start an illicit love affair, 
even if the recipient fosters no wrong intention, unless explicit pro- 
test is made against any bad purpose, for by accepting the present 
an impure hope is created in the giver, which imperils the receiver. 
Indeed, such persons should be induced, in order to avoid all danger 
for the future, either to return the presents thus received, to destroy 
them, or to distribute them among the poor (Reuter, Neoconf. n. 
113 ; Lehmkuhl I. 645 ! S. Alf. I. 6 n. 854). 

Ad 2. (After the above discussion the solving of the second ques- 
tion is not difficult.) Was Father Lucas correct in allowing Titius to 
go and take leave of Ursula, in her room alone and at night? We 
have learned that Titius declares himself willing to give up his 
sinful relations on the condition that he may go and say goodbye. 
He gives as reason that he has much to discuss with her and that 
he must recover some articles of his. He chooses the night-time 
that people shall not talk about him. None of these reasons are valid, 
because whatever he has to tell her he can do by writing, and the 
articles belonging to him can be sent to him either through the mail, 
or by some trustworthy person. Why should there be a leave-taking, 
when there must never be another meeting between them? When 
saying goodbye people are likely to become wrought up. The pas- 
sion, strong enough to have caused them to sin, would be powerfully 
aroused, and instead of a parting there may very likely be the be- 
ginning of a new life of sin; at the very least there would be 
grievous sinning more than probable, and this would be favored by 
the time, the place, and the circumstances (solus cum sola ultimo). 
It would really be a miracle if no sin would be committed. God 
protects only those who venture into danger through necessity. 
Titius is frail. He has been unsuccessful in combating temptations. 
Will he not almost certainly be overcome again? Will the tempter 



302 



THE CASUIST 



or temptress not whisper to him, Just once more, it is trie last time! 
Consequently Father Lucas had no right to allow Titius this noc- 
turnal farewell visit. 

In conclusion let us say that it may puzzle some why such a deli- 
cate subject was chosen by us for discussion. It was done, because 
so many confessors are on this point guided by an incomprehensible 
laxity, they absolve everything that comes their way. The priest at 
his ordination receives not only the power to remit sins, but to retain 
them likewise. When a confessor, however, quoad sextum, cherishes 
the axiom : "These are sins of weakness, they can not be helped. It 
always has been, and always will be so," we will answer, To be sure 
the individual is powerless to turn this turbid tide, but if all work to- 
gether this tide will be kept within bounds so that it may not over- 
flow and cause disaster. After all, where must the responsibility for 
the shocking increase in frivolity among our people be placed if not 
on the laxness of confessors? Would that all confessors acted ac- 
cording to the principles of Blessed Leonard of Port Maurice, writ- 
ten down in his admirable "Instructions for Confessors." 

The souls who through the fault of lax confessors lived on for 
years in the gravest sins, who died in them and went to perdition, 
will cry to God for vengeance. Let us apply fire and iron there, as 
Blessed Leonard advises, where on the above point gentle advice and 
earnest exhortations are fruitless. Only by concerted action of our 
confessors can the trend of immorality of our time be successfully 
checked, at least among our own people. 



s 



LXDC. CONFESSARIUS EXTRANEUS 
(A Case from the Law of Regulars.) 

Father F., a religious, has had the misfortune to fall grievously, 
and the sin committed is, moreover, a reserved one in his Order. He 
is greatly ashamed of it, and can not get himself to confess his sin 
either to his ordinary confessor, or to any other in the Order, 
although according to the constitution of the Order, he is bound 
to do so. He finally goes to a certain secular priest in whom he has 
special confidence on account of his venerable age, and is absolved. 
Subsequently, however, he is frequently troubled with scruples about 
the validity of his Confession to the secular confessor. 

Questions: I. Are there cases in which a religious may confess 
to a priest not of his own Order? 

2. If so, can such confessor absolve in a case reserved by the 
Order ? 

3. Are the doubts of Father F. well founded or not? 

Ad 1. Although according to the papal constitution the (exempt) 
regulars in general may only confess to their superiors, or to those 
priests of the Order authorized by them, still there are cases in 
which a religious may make his Confession to an outside priest, a 
regular of another Order or a secular priest. Apart from a special 
privilege, which may be given to members of an Order to confess 
outside the monastery, even to a secular, there is a distinct instance 
given in the decree of Clement IV, Virtute conspicuos, and in a later 
almost identical decree of Boniface VIII, which allows a regular in 
some cases to seek a confessor outside, namely in necessitatis articulo. 
Now what is meant by necessitatis articulo? 

Piatus Mont, briefly answers this question as follows : Alii ad hoc 
requirunt extremam necessitates, qualis est articulus mortis. Alii 



3°3 



3°4 



THE CASUIST. 



huic casui adjungunt casum diuturnae commorationis inter inh* delis, 
ubi alii fratres non sunt Ordinis nostri. Alii tandem hunc casum 
extendunt ad necessitatem vitandi scandalum, vel impediendi ruinam 
poenitentis spiritualem vel consulendi ejusdem saluti. (Praelectiones 
Juris Regularis, ed. II. torn. I. p. IV. c. I, a. 2, qu. 1.) 

A religious away from his monastery ex causa rationabili et cum 
licentia Praelati, or on a journey, may, in the event of not finding a 
suitable religious, go to Confession to any non-regular. Whether in 
such case the confessor thus chosen must be approved or not, is a 
mooted question. Authorities, such as Saint Alphonsus (1. VI. n. 
575), Lehmkuhl (torn. II. n. 394), Ballerini and others, deny this, 
while Piatus for important reasons advocates the approbation, by 
remarking in his Praelectiones J. R. (pag. 416, qu. 12) : Alii veto 

. . . requirunt, ut sacerdos electus sit approbates. Etenim con- 
fessario in hoc casu non confertur jurisdictio, neque a praelato regu- 
lar^ neque a Romano Pontifice. Non a praelato regulari, cum superior 
regularis nequeat, nequidem in Ordine, aliquem deputare, nisi sit ido- 
neus, et uti talis inventus per examen. Neque a Summo Pontiiice\ 
quia in privilegiis Romani Pontifices semper requirunt, ut eligatur 
confessarius idoneus. Porro idoneus censeri nequit nisi ille, qui a 
superiore suo approbates sit, and quotes further proof of his con- 
tention, especially a decision of the S. Congr. Episc. et Regularium, 
according to which the religious of an Order are allowed, by con- 
sent of their superiors, to confess to a "sacerdos extraneus" "dum- 
modo ab Episcopo sit approbates/' if the constitution and statutes of 
the Order do not oppose it. Our canonist will have this applied to 
secular confessors, while according to the sententia communissima 
for a regular confessor approbation of his own superior should suffice 
(Op. cit. pag. 417 qu. 13). How does this concern our unfortunate 
Father F. ? Was he privileged, although not away from the monas- 



CONFESSARIUS EXTRANEUS. 



305 



tery, and in spite of a copia confessarii, to go to a confessarius ex- 
traneus without fearing that such Confession would be invalid ? We 
believe we can answer this in the affirmative for the following rea- 
sons : Let us place ourselves in the position of Father F. He has 
committed so grievous an offense that for very shame he can not 
make up his mind to reveal his sin to a confessor who is his col- 
league, whom he must often meet, with whom he daily associates. 
Although P. Albertus a Bulsano O. C. teaches in his (( Exposit%o Reg- 
ulae F. F. Minor em" (ed. nov. pag. 385) : Praecaveatur, ne quis exeat 
in fraudem ad detergenda alieno Confessario peccata, quae Confes- 
sario proprii ordinis conHteri erubescit; nam juxta commune adagium 
fraus et dolus nemini patrocinari debent*, yet we must well dis- 
criminate here between the shame that is naturally allied to the con- 
fession of a simple peccatum grave, and which does by no means of 
itself justify a religious in seeking, against the papal regulations and 
the constitution of his Order, an outside confessor, and the morti- 
fication that a peccatum, unusual for the standing of the penitent, 
especially in a certain materia, brings with it, and which in a reli- 
gious may be so great, that it would be asking of him something 
akin to heroism, to confess such case, under conditions which ac- 
cording to the rules of his Order are joined to an acknowledgment 
of such character. 

This would, of course, correspond well to the humility of which 
every religious should be possessed and would also conform to the 
saying of St. Augustine : "If not ashamed to commit the sin, then be 
not ashamed to confess it !" All this is very proper and true. But 
if, nevertheless, our religious can not bring himself to confess his 

*"Qui tamen brevi, praedicationis vel alterius negotii causa, iter suscepturus 
est, expectare potest, ut confessionem suam apud extraneum instituat."— 
(Piatus, op. cit. pag. 419, qu. 15.) 



306 



THE CASUIST. 



CONFESSARIUS EXTRANEUS. 



307 



sin to his proper confessor, what then ? Is there really no expedient 
that permits him to take refuge with a confessor outside of his 

Order ? 

Perhaps there is a way out of the difficulty and we believe we have 
actually found it in the cases previously cited by the canonist 
as articulus necessitatis, among which there is denoted : the necessi- 
tas impediendi ruinam poenitentis spiritualem vel consulendi ejusdem 
saluti. Father F., as already stated, could not get himself to con- 
fess his sin to a Poenitentiarius of his Order. The danger to his 
soul's salvation in this condition is incalculable, even aside from 
the sacrilege of which he may become guilty, if he remains much 
longer in this sad state. It is not necessary to prove further that the 
articulus necessitatis, in the decree of Boniface VIII, may without 
question be applied to this case of our religious. 

Moreover, what else is the papal regulation and the constitution of 
the Order, which place our Father F. in such difficulties, but a lex 
humana? It is, however, a well-known and universally accepted 
principle, that the obligation of such a law, at least when it is affirma- 
tive, in general ceases in case of a grave incommodum, or damnum, 
i. e., damni gravis periculum. (Lehmk. Theol. Mor. I. n. 155.) Inas- 
much as our case deals with a damnum spirituale, this principle gov- 
erns all the more. 

It is to be considered, too, that the actual aim of this papal regu- 
lation and constitution of the Order, is the bonum of the Order, as 
also that of the individual member. A confessarius extraneus is not 
so well qualified to be teacher, judge and corrector, as the religious 
confessor himself who possesses the necessary knowledge of the 
rules, constitutions and obligations of the Order, which the former 
has not, at least not so thoroughly as the latter. Now as Father F. 
in his present sad state, had most need of just such a confessor, the 



above regulation would really serve his bonum. But as it is impos- 
sible for him to resolve to obey the same, for the reasons stated, 
then hie et nunc this rule is no longer for him a bonum but rather 
a periculum gravis damni and an offendiculum salutis, which is cer- 
tainly very far from the intention of the law-givers. The finis or 
causa motiva, of this regulation, so salutary in itself for the religious, 
is therefore removed in the case before us, and for this reason, at 
least in hoc casu, the legal principle may be applied : Cessante legis 
ratione cessat quoque ejus dispositio. In other words : Father F. 
could, on this principle and for the stated reasons, confidently seek 
a priest outside his Order, at least inJthis case, to reveal the sad 
state of his conscience. But now arises the question : Did he require 
the permission of his superior to this end ? 

In general a regular does not require the special permission of his 
superior to confess to a priest not belonging to his, or to any Order, 
except this is expressly provided by the constitution, or statutes, of 
the Order, as of course in all cases concerning Confession of regu- 
lars, in or outside the order, not only the papal regulations, but also 
the constitution or statutes of the Order must be considered if the 
regular does not wish to run the danger of confessing invalidly. 
Generally the silent permission conveyed in the concession for a 
stay outside the monastery is sufficient. A mere licentia praesumpta 
however as advocated for instance by Bonagratia ("Morales Com- 
mentary pag. 381), does not seem quite admissible, as from such a 
laxness in the observance of the strict papal regulation that the regu- 
lar should only confess to a regular* may easily result. 

♦It is, of course, another matter, if a religious dwells away from the Mon- 
astery. In such a case he may on the strength of this dispensation, confess 
to a non-regular, and for this the sola devotio suffices according to the almost 
universal practice of our times, always provided that no restrictions are made 
by the constitution of the Order or the Superior. 



3 o8 



1 



THE CASUIST. 



CONFESSARIUS EXTRANEUS. 



309 






In the case before us our religious is privileged by the decrees of 
Clement IV, and of Boniface VIII, to confess to a sacerdos extra- 
neus, as he finds himself m necessitatis articulo, and this undoubtedly 
in the sense of the stated decrees. Whether, however, in some way or 
other a permission on the part of the superior should be required, we 
shall not decide. In praxi we should advise Father F, in order to 
be quite sure about the confession, to seek first the permission of his 
superior. A prudent and sensible superior will, at least, for single 
cases, grant such permission willingly and promptly, without going 
into the matter more closely. Should he, however, cause the petitioner 
undue difficulties in regard to this permission or if the obtaining of 
the permission is so obnoxious for the religious that it must be re- 
garded, according to moral principles, as really causing him an 
incommodum grave, then he would be justified even without the 
expressed approval of his superior, to betake himself to a confessor 
outside the Order ex jure divino, by virtue of which every Christian 
is enjoined to confess mortal sins before receiving the Holy Euchar- 
ist, or before celebrating Holy Mass. (Cone. Trid. Sess. XIII, c. y. 
et'ean. XI, De SS. Eucharistiae Sacramento.) In such case this 
special confessor would have jurisdiction from the Popes or the 
supreme superiors of religious, they having declared that every reli- 
gious in necessitatis casu may be absolved by an outside priest * 
"Villus defends this view, at least in the case when a religious, i»**» 
nec^Ztis, is by his Superior, without sufficient reason, refused ^P™ n 
to confess extra Ordinem. This view is no doubt proper, also when a regular 
goes to a confessarius extraneus without the approval of h,s Supenor be- 
cause to obtain such would be such a grave incommodum for him, that ac- 
cording to moral principles he could not be obliged to do so, or because he 
Superior himself joined to his permission such burdensome cond.t.ons (as 
for instance requ ring the petitioner to state the exact reason for the re- 
ues wSwoTd nfount to a confession outside the confession) so that « 
?he en7the religious would have to confess outside, without perm.ss.on of h,s 
Superior. 



Ad 2. Since the facultas a reservatis Ordinis absolvendi is possessed 
only by the superiors, and the Poenitentiarii authorized by them, it is 
evident that a confessor not belonging to the Order can not absolve 
from the same, unless he has previously received the necessary dele- 
gation. The latter, however, need only be a silent one, and is already 
included in the permission to confess to a Confessarius extraneus, 
ex justa et rationabili causa, and the latter can either directly or in- 
directly absolve from the reserved offenses according as (here again) 
the constitution or the custom of the Order, or the special regula- 
tions of the superior permit. How does this apply to our case? 
Father F. has rendered himself guilty not only of grievous sin, but 
of a sin reserved in his Order. Could the secular priest to whom he 
went to Confession absolve him also from this reserved case ? After 
all that has been said upon this subject the answer to this question 
can not be doubtful. This confessor could, no doubt, absolve the 
penitent religious, and that directly if he has asked his superior's per- 
mission for this Confession, even if the constitution of the Order 
to which the regular belongs should not permit such absolution, and 
this holds good without doubt likewise if the religious should not 
have obtained an expressa superioris licentia, because it would have 
been for him a too difficult incommodum. The power to absolve 
directly from the Order's reserved case would in this case, just as 
in the other, be delegated to the Confessarius extraneus a Summo 
Pontifice as the supremus Superior Ordinis, as one could not rea- 
sonably suppose that the facultas ab Ordinis reservatis absolvendi 
remains reserved for the superiors and the Poenitentiarii Ordinis even 
then if the reservation quoad Poenitentem not only not attains its 
good and salutary aim, but rather is for him in destructionem or in 
periculum gravis damni, as the case is here, if it is made impossible 
for our unfortunate religious to confess his peccatum reservatum 



3io 



THE CASUIST. 



anywhere else except in the monastery. Our Father R, so as to be 
quite certain about the absolution a reservato, should, however, go 
to an approved priest. The reason for this has already been ex- 
plained in our discussion ad I. That the penitent should draw the 
confessor's attention to the circumstance of the reservation need not 
be further explained. 

Ad 3. Our argument has already answered this question. Father 
F. need not trouble himself and he may say Holy Mass without fear 
or doubt about the validity of the absolution. 



LXX. AN INVALID ABSOLUTION * 

Mr. N. was dangerously sick; he would not listen to admonitions 
to make his peace with God, and refused to see the priest. N.'s 
wife and the priest frequently took counsel together as to how it, 
would be possible to bring about N.'s reconciliation with God, even 
in spite of his resistance. Finally the pastor resolved upon the fol- 
lowing proceeding: He secretly took up his position in an adjoining 
room, only a few feet, therefore, from the patient's bed — then 
the wife went to the sick man, purposely leaving the door ajar, so 
that the priest in the front room could hear and understand every- 
thing, whereupon she started an intimate conversation with her 
husband, apparently with the purpose of entertaining the patient, 
but in reality to draw from him an open acknowledgment of his 
sins, and to incite in him sincere contrition. Being a clever woman 
she began by speaking of one subject or another, then in par- 
ticular about how good he had been to her in every respect; then 
about the religious practices in which for a long time he had 
joined her; of course there had been, too, some dark hours, as for 
instance, the discord which had been caused some years ago in 
puncto religionis; his constant neglect of this and that duty; then 
in order to obtain a "confession of sins," after this "examination 
of conscience," she asked gently whether he remembered so and so, 
whereupon naturally the answer was a long-drawn "Yes, that is 
right," or, "I must admit that," etc. Then she told the sick man 
how painful all this had been and still was for her, all the more 
so, as she could not banish the awful thought and harrowing fear, 
that he, her well-beloved husband, would lose heaven and go to 
eternal perdition on account of these sins, and that an awful fate 



♦By P. N, Katzemich, D.D. 



311 



312 



THE CASUIST. 



would await him after death unless he was heartily sorry for them. 
By these and similar representations the good wife endeavored to 
awaken sincere contrition in the sick man, but she never said a word 
about the reception of the Sacrament of Penance, so as not to 
counteract the good disposition of her husband by arousing in him 
anew his antipathy against the religious act. The priest, who had 
heard and understood everything distinctly, believed that he might 
under the circumstances be satisfied with this confessio dolorosa, and 
gave priestly absolution to the sick man unobserved and unknown by 
the latter. The priest confidently hoped in this manner to have 
saved the sick man's soul. The question is asked whether this abso- 
lution was valid or not? To this we must answer a decided No, 
for the reason that the penitent did not have the necessary intention 
to Sacramental absolution, and because the materia proxima Sacrch 
menti was altogether absent. 

i. The absolution in question is invalid because the penitent did 
not have the necessary intention to receive the Sacrament. 

God gave to man reason and free will, and willed that no adult, 
i. e., no one who has attained the use of these faculties, should be 
saved without personal co-operation. Man, accordingly, must co- 
operate with grace, he must will to be saved, he must agree to it, and 
intend it. If sanctifying grace is to be imparted to him, through 
the administration of any of the Sacraments, he must agree to re- 
ceive this Sacrament, he must will to receive it, he must have the 
intentio suscipiendi Sacramentum. This intention, it is true, may 
be of different kinds, it may be actual, habitual or virtual, and either 
be had explicite or implicite; but one of these kinds of intention must 
be present, just which one is immaterial, for the validity of the 
Sacrament. 

Our patient had had none of these kinds of intention ; we are even 



AN INVALID ABSOLUTION. 



3i3 



aware that he had declared a positive aversion for, and actual oppo- 
sition to, the reception of the Sacrament of Penance. The peculiar 
examination of conscience and the resulting Confession were not cal- 
culated to produce a change of mind, and the contrition which his 
better half endeavored to awaken in him was rather doubtful; in 
fact, under the circumstances, we can hardly suppose or admit of its 
presence; otherwise the immediate result would have been the 
desire for a priest, and for the reception of the Sacrament of 
Penance. At all events the contrition was not such as to offset the 
deeply inrooted aversion, and therewith fades away the most im- 
portant ray of hope for reconciliation with heaven of the sick man. 
The absolution therefore even if given " 'sacrament ally >" was totally 
inefficient and invalid, on account of the intentio suscipiendi being 
absent. 

2. The absolution was invalid, because the materia proxima Sacra- 
menti was completely lacking. By the materia proxima we mean 
the materia which was prescribed by the Council of Trent (Sess. 
XIV, Cap. Ill) in the following manner: Sunt autem quasi materia 
hujus Sacramenti (Poenitentiae) ipsius poenitenti actus, nempe 
contritio, confessio et satisfactio. Whether these actus poenitentis 
are to be understood as materia proxima intrinseca seu ex qua or 
merely as an extrinseca seu circa quam; in other words, whether they 
belong to the essence of the Sacrament, or are merely a conditio 
sine qua non, that we may leave here undecided; it only concerns 
us that in our case this materia was simply not present. 

Apart from the very doubtful integritas materialis, necessary 
without question, there was really no confessio, properly speaking; 
for it can not be said that the patient made a sacramental confes- 
sion of sin, i. e., that he accused himself to a prescribed confessor of 
all grievous sins committed in order to receive priestly absolution ; 



314 



THE CASUIST. 



he had no idea of the priest's secret presence, nothing was further 
from his thoughts than to confess and be absolved, and he resisted 
stubbornly the sacramental Confession. No doubt whatever can 
prevail upon that score that the patient made no confessio; he 
lacked therefore a most important part of the essential matter, or, 
at least, the indispensable conditio sine qua non; hence the absolu- 
tion could not possibly take direct effect and the validity of the 
same can not be thought of. 

Furthermore, there was lacking also the satisf actio sacramentalis ; 
it was certainly not present in re : the confessor could not properly 
impose such because no confessio had taken place, and had the 
patient upon himself imposed a penance, it would not have been a 
sacramental penance. The satisfactio in voto presupposes a real 
and sufficient contrition and must de jure at least virtually manifest 
itself to the confessor; otherwise it would not be materia or pars 
materiae. Even if we could presume true contrition in our patient, 
the same did not de jure manifest itself to the confessor, and neither 
consequently a satisfactio in voto, even if present. There was, 
therefore no confessio nor satisfactio. 

The third part of the materia proxima is the true contrition which 
must also de jure be manifest to the confessor. It is not impossible, 
although highly improbable, that the sick man, in consequence 
of his wife's representations, attained a true contrition, and hence 
sufficiently disposed in regard to sanctifying grace, but undoubtedly 
he was not possessed of that particular contrition required for the 
materia proxima Sacramenti. As materia, or pars materiae, the 
contrition must absolutely manifest itself exteriorly, of course 
not in se — for that is impossible— but in alio, i. e. in actu et per 
actum confessionis. As the patient made no confessio, his contri- 
tion, even if present as sufficiens dispositio ad justificationem ex 



AN INVALID ABSOLUTION. 



3*5 



opere operato, could not possibly manifest itself to the confessor 
and for that reason could not serve as materia, or pars materiae. 
Thus there are wanting in our patient all the actus poenitentis, the 
contritio, the confessio, and the satisfactio; in short, all of the 
materia proxima Sacramenti, which according to the interpretation 
of the Scotists is the indispensable "conditio sine qua non", and 
according to the interpretation of the far more numerous body of 
other theologians a "pars essentialis ipsius Sacramenti." 

The validity of the absolution in question is, therefore £ to be 
absolutely denied. 



LXXI. IMPEDITIO PROLIS * 



This unnatural sin which so greatly desecrates the sacredness of 
wedlock, unfortunately is becoming more frequent, and is propa- 
gating itself by word and print even among those circles where 
hitherto these vices were unknown. Hence the necessity of dis- 
cussing this matter. We desire to restrict ourselves to a brief state- 
ment of principles without going into the matter too closely. 

i. All moralists are unanimous in condemning this sin as one of 
the most grievous which can be committed in married life ; and this 
applies to every attempt to prevent conception in the cohabitation, 
be it with or without the use of contrivances. There is the difference 
to be kept in mind that in the first instance the wife after earnest 
remonstrance with the husband suppositis supponendis may be per- 
missive; in the second instance, with contrivances, this is forbid- 
den absolutely. The use of contrivances rendering any conceptio im- 
possible causes the act to be unlawful from the beginning, and 
therefore intrinsecus malus. Co-operation with the same, even if 
only material, is so intimately allied and so necessary to the sinful 
act, that it can never be permitted, except in the most extreme case, 
as some theologians even allow the maiden in the extreme case to es- 
cape by purely passive sufferance a threatened death. When, there- 
fore, the Roman Penitentiary decided that a wife be allowed for 
weighty reasons, and after previous exhortation of the husband, to 
render the conjugal duty under such conditions, it is always to be 
understood only in the first sense, as then the act in the beginning is 
legitimate and becomes an abuse of marriage only through the hus- 
band's fault. Indeed, for important reasons, under the same condi- 
tions the wife may even claim her conjugal rights; her right is in- 



*By W. Stentrup, SJ. 



316 



IMPEDITIO PROLIS. 



3*7 



contestable, and with regard to her husband's sin she remains disap- 
proving and purely permissive. 

2. We shall now view the matter in its direct relation to the 
confessor. There are these three possibilities: 

(a) A penitent either does not mention the sin at all, or (b) 
he inquires about its nature and gravity, or (c) he confesses the 
same as a grievous sin. 

(a) If the penitent says nothing in ^regard to this sin and the 
confessor has no reason to suspect it, he must not put any ques- 
tions. If, however, he has reason to believe the penitent enmeshed in 
this sin, and at that without bona fides, it is evident that he is bound 
in conscience to clear up the case by prudent questioning ; otherwise 
he would seriously fail in his office as judge in the tribunal of 
Penance. Should he, however, judge the penitent to be in bona fide, 
then the answer of the Sacred Penitentiary of the 10th of March, 
1886, may serve as his guide. The question in this instance was 
asked in order to remove a doubt remaining after a previous 
answer, and to bring about among confessors a uniformity of pro- 
cedure. The question was originally put as follows : Quando adest 
fundata suspicio poenitentem, qui de onanismo omnino silet, huic 
crimini esse addictum, num confessario liceat a prudenti et discreta 
interrogatione abstinere eo, quod praevideat plures a bona fide ex- 
turbandos multosque Sacramenta deserturos esse? An non potius 
teneatur confessarius prudent er ac discrete interrogare? Sacra Poe- 
nitentiaria, attento vitium infandum, de quo in casu, late invaluisse, 
ad pro posit a dubia respondendum censuit, prout respondet: Regu- 
lariter negative ad lam partem; affirmative ad 2am partem. 

The Sacred Penitentiary prescribes therewith plainly the proper 
procedure, and states the reason: attento viti\:m infandum late in- 
valuisse. 






3'8 



THE CASUIST. 



IMPEDITIO PROLIS. 



3*9 



But we must not overlook the word "regulariter." Ordinarily 
we must follow the given instructions ; an exception is however not 
excluded, and is really bona fides present, if the warning promises 
no result and if the omission of the warning is not likely to have 
evil consequences, then there applies to this matter what moralists 
teach in relation to other matters. 

(b) If the confessor is consulted about the sin and about its 
gravity he must give a truthful and clear answer, otherwise he will 
become accessory to another's sin. 

(c) What if the sin is properly confessed? In this connection 
the following case is brought to our attention : A woman has con- 
fessed this sin and to the remonstrance of the confessor she replies : 
"My husband and I confessed the sin to a missionary and he said 
nothing about it. My husband's regular confessor likewise never 
said anything about it, hence we concluded that the matter was not 
so very serious." What is to be said about the action of these con- 
fessors ? 

In answering this question we return to the above-mentioned 
reply of the Penitentiary. The matter was again submitted in the 
following form : 

An confessarius, qui sive ex spontanea confessione, sive ex pru- 
denti interrogatione cognoscit, poenitentem esse onanistam, teneatur 
ilium de hujus peccati gravitate aeque ac de aliorum peccatorum 
mortalium monere, eumque, ut ait Rituale Romanum, paterna caritate 
reprehendere atque absolutionem tunc solum impertiri, cum sufficient 
tibus signis constet, eundem dolere de praeterito et habere propositum 
non amplius onanistice agendi. Respondetur: Affirmative juxta doc- 
trinas probatorum auctorum. 

Our authorities, it is true, do not demand that the confessor must 
exhort the penitent in the case of each individual sin properly con- 



fessed, and that he assure himself expressly about contrition and 
resolution in the case of each of them ; but they do demand unani- 
mously the truly probable (morally certain) determination of the pen- 
itent's disposition. For this reason they require a special treatment of 
habitual sinners and of relapsers. If in our matter the penitent be- 
longs to one of these classes, which is generally the case, then the 
confessor must satisfy himself concerning contrition and resolutions 
in regard to this particular offense. We will not deny that there may 
be individual cases, in which the confessor is morally certain as to 
the disposition of the penitent, and fears by citing this special sin, 
not fully realized by the penitent to be a grievous sin, to shake his 
good resolution present, and make it doubtful. Prudence will then 
counsel him to avoid the temptation which a specification of this sin 
would be for the frail sinner. As a matter of course the penitent 
must by no means be given the false impression, through the con- 
fessor, that his action be no sin, or not a grievous sin. 

It often seems to us that if we would take a firmer stand for the 
law of God, with more confidence and greater apostolic candor, it 
would be also of great benefit in this matter. Of course we must not 
impose what is not an actual obligation ; but, in an evident violation 
of the divine commandments, to beat about the bush will give the 
impression as if it were man's law and not God's law, which par- 
alyzes the authority of God's representatives, and disturbs in the 
penitent the supernatural idea. 

Unfortunately physicians only too often are our opponents in 
this matter, and by their professional advice they make things exceed- 
ingly difficult for us. Then let us tell the penitent: "It is God's 
commandment ; the observing of the same in this case may be hard 
and a great sacrifice, but God promises grace and heaven 'to those 
who obey.' " In short : Suaviter in modo, fortiter in re. 



LXXIL A SICK PERSON CONVERTED THROUGH 

HYPNOTIC SUGGESTION * 



In the hospital at X. there was a very sick man, whom the physi- 
cians had given up. According to their diagnosis, he had at most 
only two more days to live. The graveness of the situation had been 
explained to the patient, but in spite of all the hospital chaplain 
found himself unable to induce the patient to receive the last Sacra- 
ments. He was stubborn and there was no use arguing. The zeal- 
ous chaplain had just left the room after another vain attempt, made 
in the presence of the two attending physicians, to convert the un- 
fortunate man. One of the physicians was a clever hypnotist, and 
had already alleviated our patient's suffering many times by hyp- 
nosis. He had just been about to put the patient once more in hypnotic 
sleep when the chaplain came. Hardly had the latter left the room 
when the physician approached the sick man's bed and put him 
gently to sleep. When, however, hypnosis had entered the physi- 
cian suggested to the sick man, after some soothing thoughts, the 
firm determination in five minutes after his awakening to have the 
chaplain called and to receive the last Sacraments, with a sincere 
and contrite heart. The doctor hastened the procedure and after 
hardly two minutes he caused the patient to awaken. As usual 
after a hypnotic sleep, the latter expressed his gratification at the 
relief from his pains. But not only that. Exactly five minutes 
after waking he glanced around the room looking for the chaplain, 
and had him sent for. The latter responded, and the patient asked 
to receive the last Sacraments. The surprise and inward joy of the 
good priest may be imagined. Without any trouble the priest at- 
tended to the man, and by the following morning the latter had 

*By P. N. Katzemich, D.D. 

320 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 



321 



journeyed into eternity. What are we to think of this strange con- 
version? In other words: (1) Did the patient receive the last Sac- 
raments validly? (2) Would the priest have been allowed to ad- 
minister the Sacraments, if he had been told of the hypnotic charac- 
ter of the process of conversion ? (3) Was the physician allowed to 
hypnotize the sick man and (4) was it proper to suggest the idea 
of conversion ? We will answer these four questions one by one. 

1. Did the patient receive the last Sacraments validly, i. e., with 
profit ? 

Unfortunately we can not answer this important question unqual- 
ifiedly in the affirmative. The objective fact is not clear enough. 
The chaplain had no idea of the hypnotism that had taken place, nor 
of the hypnotic suggestion of conversion; he therefore regarded the 
sick man's conversion as genuine, without examining further into 
the matter. The physician, however, believed that his suggestion 
had succeeded; he was pleased to have rendered the patient a 
good service in this manner, and to have enriched the science of 
hypnosis by an interesting experiment. He gave no thought to the 
question of validity of the Sacraments so received. The thought 
that the attitude of the patient might perhaps be independent of the 
suggestion of conversion did not enter his mind. Thus it happened 
that he, neither, examined more closely into the real facts The 
sick man, feeble and exhausted, said no more about his "conver- 
sion. Had he been asked in his normal condition whether he had 
become converted and why, or how he came to think of sending 
for the chaplain, and receiving the last Sacraments, then the true 
condition of affairs would certainly, or at least in all probability 
have been ascertained. 

orollhr/" 6 'I' thefe " n ° thing ,Cft f ° r US but to reck °« with 
probabilities, and to say that the patient probably, most probably, 



322 



THE CASUIST. 



indeed, received the last Sacraments validly, that is to say with 

profit. 

First of all, the suddenness and unexpectedness of the conver- 
sion must not be allowed to startle us. A man may be a hardened sin- 
ner and reject all priestly assistance, and nevertheless become all at 
once a ready penitent. God has in His power also the heart of 
the perverse man, and knows how to lead and stir it in such manner, 
that against all human expectations, it heeds the divine call to 
grace, and instantly forsakes the path of sin. Examples of this 
kind are offered us in the repentant thief upon the cross, St. Paul 
the apostle, and many other saints. 

Against this there arises the justifiable doubt of the validity of 
the Sacraments as soon as we bring the sudden and unexpected con- 
version in connection with the preceding hypnotic state and the 
suggestion "to send for the chaplain five minutes after awakening^ 
and to receive the Sacraments." 

It is well-known that hypnotism transports the subject into an 
irresponsible state of mind ; the same holds good for the so-called 
post-hypnotic hallucinations, i. e., for that state in which the hyp- 
notized person at a fixed time acts upon a suggestion received 
during the hypnotic state. The physician, on his part, had done 
everything to produce just such post-hypnotic state, and it looks 
very much as if with success. 

There arises consequently, the question whether the patient in 
casu was of sane mind or not when receiving the Sacraments. If 
he was, then he received the holy Sacraments validly, and with 
profit; if he was not, then his conversion was an unconscious ex- 
terior act, and an unwilling one, an actus hominis, the value of 
which can not be thought of. It is not impossible that through hyp- 
notic suggestion a man may be brought even against his will to send 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 323 

for a priest, to request of him the last Sacraments and exteriorly to 
do everything that the idea suggests virtually and formally. In 
our patient it is of course remarkable and strange that his actions 
after the hypnotic sleep corresponded so exactly to the hypnotic 
suggestion ; exactly five minutes after awakening from the hypnotism 
he caused the chaplain to be called and asked him for the Sacra- 
ments. Moreover, it is apparent that the suggested alleviation of 
pain was really accomplished, for the patient spoke of an allevia- 
tion that had taken place. The physician, however, had suggested 
both, the idea of alleviation and the one of conversion at one and 
the same time, so that the accomplishment of the one leads us to 
infer the attainment of the other. Furthermore, as at short terms 
even apathetic suggestions succeed, as experience proves, and in 
our case the time was only five minutes, the suggestion of conversion 
may actually have been considered a success. Besides, the diametri- 
cally opposed behavior within a few minutes of the patient in regard 
to one and the same idea is most plausibly explained by regarding 
his first attitude as the conscious one ; the second, on the contrary, 
as unconscious, therefore an involuntary and irresponsible one. 
These are the chief arguments that can be advanced for the patient's 
unsound state of mind. They are not irrefutable, although we can 
not deny to them some probability. Let us place against these 
arguments the evidence that would point to a normal state of mind. 
First of all, it is very doubtful, and not very probable, that the 
suggestion of the idea of conversion actually succeeded. It is a fact 
vouched for by medical science, that a great number even of such 
subjects as are particularly good "media" are far from being suscepti- 
ble to all sorts of hypnotic suggestions ; for the most part they re- 
spond only to sympathetic ideas, i. e., such are agreeable to their 
tastes, to their sense of honor, to their conscience, or their tempera- 



3«4 



THE CASUIST. 



mcnt. The idea of conversion was extremely distasteful to our pa- 
tient ; he had obstinately resisted it all the time up to about seven min- 
utes ago ; he detested it, and would go to perdition rather than sub- 
ject to it. We may, therefore, suppose that he had not received it at 
all. The speedy and superficial manner of the suggestion gives support 
to this argument. Experience teaches that the hypnotist must 
usually suggest an obnoxious idea repeatedly in order that it may 
be entertained, two, three, four times; indeed there have been in- 
stances where it was necessary to repeat fifty and sixty times before 
it succeeded. With our patient there was no repetition nor an at- 
tempt at special emphasis. Again, there appear as a rule more or 
less violent signs of reluctance as a result of distasteful sugges- 
tion; the subject resists, and struggles against it by word and de- 
meanor, and if the suggestion is further urged, the subject not in- 
frequently falls into fits. There was not the slightest excitement 
apparent in our patient. He offered no objection, he showed no 
displeasure. Hence it appears that he remained unresponsive to 
the idea of conversion, and that he was in no wise moved by it. 

The suggestion as such seemed, therefore, unsuccessful; there- 
with, too, the injurious influence of the suggestion upon the mind 
was removed, or rather was not present. 

Another reason for assuming a normal mind is found in the fact, 
that the compliance with a successful suggestion is completely pre- 
vented by a contrary psycho-physiological nature of the subject. 
The received suggestion operates adequately only when its original 
relation to the nervous system remains unchanged. With our 
patient, not even the reception of the suggestion as such can be 
shown with certainty ; still less its efficaciousness. 

On the other hand, however, the approach of death was probably 
not without a special influence upon the nervous system and ideas of 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 325 

the patient; so that a complete failure of the suggestion may well 
be supposed. In that case the patient's state of mind was, of course, 
not at all influenced by the idea suggested. 

The efficacy of the simultaneously suggested alleviation of pain 
does not prove a great deal ; it is not even certain that this allevia- 
tion was actually to be ascribed to the suggestion; many sick 
persons feel stronger and better just before death without any 
suggestion whatsoever. Furthermore, the idea of alleviation is 
distinctly different from the idea of conversion, and stands in an 
opposite relation to the patient ; he cherishes the one idea, and hates 
the other ; from the success and efficacy of the one does not at all 
follow the efficacy of the other. The experience of hypnotists con- 
firms this. 

Finally, we must remember that hypnotic, or post-hypnotic, hal- 
lucinations do not always preclude a conscious state of mind. Even 
in natural sleep we make a distinction between light and sound 
sleep, and only in the latter the conscious state of the mind is ab- 
sent. It is similar in hypnotism, its influence upon the subject's 
mind stands in proportion to the efficacy of the idea suggested, and 
this again upon the disposition of the nervous system and the skill 
of the hypnotist. The fact of positive disobedience, righteous in- 
dignation, and open contradiction of many subjects to whom are 
made silly or unlawful suggestions, proves that subjects have in 
their hypnotic /sleep a flickering of consciousness and hence a mo- 
mentary sound state of mind ; at least those signs of reluctance are 
not always and solely attributable to the "natural instinct !" Even 
if we would in the case of our patient acknowledge the success of the 
suggestion itself and of the working of the suggestion, there will 
still remain a well-founded doubt as to whether and to what degree 
consciousness was disturbed. 



^ 



326 



THE CASUIST. 



His action is more easily attributed to a conscious and deter- 
mined change of will than to post-hypnotic hallucination. To the 
working of the hypnotic suggestion there were opposed considerably 
greater difficulties than to a sudden conscious change of mind. In 
the latter case it only required a motio congrua of divine grace to 
change the will ; in the former, a motio congrua of the hypnotist, 
which under the circumstances was hardly possible. 

In view of these reasons, speaking for the sound state of mind of 
our patient, we are justified in saying that the greater probability 
points to the intrinsic genuineness of the "conversion." It appears 
therefore to have been a conscious, interiorly willed and freely con- 
templated act rather than an only apparent and mechanical one. Did 
however, the sick man in those moments act as a free-willed man, 
then he in reality has complied with all the conditions required for 
the validity, i. e., the fruitful reception of the holy Sacraments ; he 
had the intention of receiving the Sacraments; he was sorry for 
his sins, and confessed them formally ; and, therefore, the Sacrament 
of Penance was validly received and consequently fruitful; the 
same is to be said of the Holy Viaticum and Extreme Unction, as 
in regard to them there are offered no other difficulties. 

2. Was the chaplain allowed to administer the Sacraments to the 
patient, had he been aware of the hypnotic suggestion of conver- 

1 

sion? 

We answer in the affirmative. Sacramento, propter homines, say 
the theologians. One may and must administer those Sacraments 
absolutely or relatively necessary for man's salvation, to the pa- 
tient, so long as there is some probability for their valid reception. 
As we have seen, such a probability was actually present in casu. 
Of course the chaplain properly considering a possible invalidity and 
consequent danger of irreverence to the holy Sacraments, would 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 327 

have given absolution conditionally ; for "certum est quod casu quo 
adest extrema proximi necessitas, et non habeatur materia nisi dubia, 
tunc minister non solum potest, sed tenetur sub gravi sacramentum 
ei ministrare sub conditioned says St. Alphonsus (Theol. Moral. 
1. V. Tr. I. n. 39). 

The consideration that the chaplain should not thus participate 
consciously in a hypnotic experiment, is of little import here. For 
the chaplain would have participated in casu only materially, 
but not formally, in the hypnotic experiment, as he would not have 
come on account of the experiment, but in order to save, if possible, 
the soul of the hypnotized for heaven. Furthermore the deliberate 
participation in hypnotic experiments can not be condemned as ab- 
solutely unseemly or sinful. There are cases where hypnotism is ( 
lawful ; and in these one may lawfully participate. 

3. Was the physician allowed to hypnotize the patient? 

This question can not be confirmed unconditionally. Hypnotism 
has been vehemently combated ; it has been condemned as injurious 
to health, and as unlawful ; in this manner it has been presented, for 
instance, in the Civitta Cattolica, 1886, and in P. Franco's, S.J., 
Vipnotismo tomato di moda, Roma, 1886; on the other hand, how- 
ever, there have not been wanting earnest and able advocates ; as for 
instance P. Coconnier, O.P., in Uhypnotisme franc, Paris, 1898, 
XHme edition. The supreme ecclesiastical tribunal answered to the 
question, as to whether life-magnetism be lawful, in a rescript of 
June 23, 1840, that it is "not forbidden, if all deceit and supersti- 
tion, expressed or silent invocation of Satan, and immoral aims, 
are excluded." That which went under the name of life-magnetism 
in the middle of last century, bears in our days the name of hyp- 
notism. The Sacred Congregation Inquis. therefore does not pro- 
hibit hypnotism as such. One should compare this with the decision ' 






328 



THE CASUIST. 



of the Holy Office, of 28th July, 1847, and the P a P al encvclical to the 
bishops, of the 4th August, 1856, also the answer of the Holy Office, 
of 26th July, 1899, in which it is decreed in reference to a physi- 
cian taking part in medical application of hypnotism in the case of 
sick children: Quoad nova experimenta, si agatur de factis, quae 
certo naturae viris praetergrediantur, non licere; si veto de hoc du- 
bitetur, praemissa protestatione, nullam partem habere velle in pactis 
praeternaturalibus, tolerandum, tnodo absit pericutum scandali. 

It must be conceded that in hypnotism very remarkable and 
strange phenomena appear, but all these are by no means a cri- 
terion of diabolical influence. Calm research and psycho-physio- 
logical science have an explanation in a purely natural way of most 
hypnotical phenomena hitherto known. The susceptibility of the 
nervous system for exterior influences, and the close alliance of soul 
and body, form a sphere in which the ability of the hypnotist is 
enabled to work amazing things, without in any manner needing the 
co-operation of spirits. 

Unfortunately it is true, that hypnotism has many times injured 
the health of subjects, either through the weakening of the memory, 
of the reason, or of the will power, or by producing diseased condi- 
tions. The culpability for these lamentable conditions, however, 
rests almost always upon the imprudence and awkwardness of the 
hypnotist who hypnotizes persons without proper regard to their 
psychical and somatical condition. If hypnotists would set to work 
more cautiously and conscientiously, and if they would not put the 
subjects in sleep too often nor too long, if they would not vex them 
with distasteful suggestions, then the evil after effects would either 
altogether cease or at least grow perceptibly less. At any rate 
injury to health is not necessarily a result of hypnotism and it has 
not been proven that hypnotism as such is detrimental to health. 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 329 

Although it may be advisable to be somewhat skeptical in ac- 
cepting the triumphal reports of the advocates of hypnotism, yet it 
can not be denied that hypnotism has secured a prominent place 
in the medical science. It is claimed that much good has been 
already done with its aid and that it has either removed, or at least 
alleviated diseased conditions. It is argued that it would be un- 
just to condemn it as the sworn enemy of the human race, and to 
banish it from off the earth. Still, this commendation of hypnotism 
must be greatly modified. The injuries which hypnotism works or 
may work are so numerous and so great, that from the standpoint of 
common sense alone, it must be designated as unlawful and improper. 
It is easily understood why the medical faculty of Vienna, ftie 
health boards of Milan, and of Rome, the College of Medicine at 
Brussels, the international Congress for experimental and thera- 
peutical hypnotism at Paris (1889) and others, recommended to 
their respective governments the prohibition of public demonstra- 
tions of hypnotism, which was usually done. And it would be pro- 
per, too, if so-called scientific application of hypnotism would 
be entirely forbidden. Exception might be made in cases where 
hypnotism is employed for healing purposes, and this only on the 
following conditions: (1) That no other remedy was known or 
available; (2) That the probable harm would be exceeded by the 
benefit to be gained; (3) That it be applied by an experienced and 
conscientious physician, precluding all risk and misuse ; (4) That the 
patient agree to it. Such case will not easily present itself. For this 
reason the use of hypnotism is mostly considered by the authorities 
as unlawful (cf. Ballerini-Palmieri, Villada, Bucceroni, Aertnys, CI. 
Marc, etc.) ; while others permit its use as a specific under the 
restrictions as above-mentioned (cf. Lehmkuhl, D'Annibale, Ojetti, 
after D'Annibale and Lapponi, Noldin). 



33o 



THE CASUIST. 



The person who lets himself or herself be hypnotized, surren- 
ders to the will of the hypnotist for the term of the hypnotic sleep and 
the latter may do as he pleases with the subject; it is also unlawful 
to renounce reason and free will as done in hypnotism. These are 
the chief arguments against hypnotism besides those dealt with 
above. When reading the accounts of what hypnotists have at- 
tempted with sleeping subjects, one is inclined to pray, "From the 
evil of hypnotism deliver us." Revolting abuses have been per- 
petrated in this particular. This is not the place to go into details ; 
we refer to the authors above quoted. 

The answer to the third question is thus given and supported by 

facts. 

If the doctor had really put the patient in hypnotic state it 
remains to answer the last question : 

4. Was the physician allowed to suggest conversion to the patient ? 

The physician could not know whether the suggestion of con- 
version would produce harmful excitement of the nervous system 
in our patient, and thereby an aggravated condition. He went to 
work with all necessary caution and gentleness, and he did not 
worry the sick man by repeating the suggestion. It was permissible 
to venture something in this case, for the salvation of the patient's 
soul was of more importance than his somatic condition. 

Nor was consideration of the doubt of validity of the Sacraments 
an obstacle; for the suggestion of conversion did not surely cause 
invalid reception, it did not even contain an absolute danger to 
the validity; moreover the Church has not yet prohibited sugges- 
tions of this kind. The physician's action can thus be approved of ; 
he was allowed to suggest to the patient in a hypnotic state, Five 
minutes after awakening from the hypnotic sleep to call for the 
chaplain and ask him for the last Sacraments. 



LXXm. AN EXPLANATION OF THE WORDS : " NEMO 
IN UTERO MATRIS CLAUSUS BAPTIZARI DEBET." * 

In the Roman Ritual we find among the instructions preceding 
the baptismal rite (tit. II. cap. I. n. 16), the direction: Nemo in 
utero matris clausus baptizari debet. This sentence may attract 
notice, as it appears to contradict that which now is universally 
taught in moral and pastoral theology. 

There may be asked two questions, viz. : 1. Is it allowed, or even 
an obligation, to baptize an infant still in the mother's womb, if 
otherwise there is danger of the infant dying without Baptism ? And 
presuming that by such Baptism the applicatio materiae was possi- 
ble, and that also the forma was correctly used, the second question 
would be: Is such Baptism valid? 

It is universally taught at present, in regard to the first question, 
that it is allowed, and even obligatory, in a case of necessity to bap- 
tize the infant in the mother's womb. The second question Gury 
answers: (Theol. Mor. pars II. n. 239): Affirmative probabilius, 
si puer attingatur aqua in utero matris medio aliquo instrumento, 
quia talis infans, cum existat iam homo viator, valide potest bap- 
tizari. Considering the matter theoretically, I think a more posi- 
tive statement should be made as follows : Such Baptism is without 
doubt valid, provided the applicatio materiae properly took place. 
For with this provision I see no reason why the validity of the Bap- 
tism can be at all doubtful. "Subjectum enim baptismi est omnis 
homo viator nondum baptizatus." In these cases, however, it will 
generally remain somewhat uncertain whether the applicatio mate- 
riae properly took place, and for this reason already there would 
pro praxi be advisable a conditional repetition of the Baptism if 

♦By J. Rieder, D.D. 



33i 



33 2 



THE CASUIST. 



BAPTIZING AN INFANT IN THE WOMB. 



333 



the infant subsequently be born alive. This is indeed decreed by a 
decision of the Sacred Congregation, of the 12th July, 1794, in 
which the conditional repetition of a Baptism administered in the 
womb is ordained in these words: Foetus in utero supra verticem 
baptizatus, post ortum denuo sub conditione baptizetur. 

If, however, the conditional repetition of the Baptism would be 
argued by appeal to the sentence: Qui natus non est, non potest 
renasciy i. e., in order that one may be re-born, he must first of all be 
born, we can not agree with this argument for intrinsic reasons, 
and we will show below how this sentence, frequently met with 
in ancient writers, has frequently been misunderstood. 

With a clearness and precision all his own, Lehmkuhl thus ex- 
presses himself (Theol. Mor. II. 74) : Vix dubitari potest de valore 
baptismi infanti in utero matris collati, si infantis caput a secundina 
omnino solututn sive medio instrument sive aliter aqua tingi po- 
tuerit. Attamen non desunt, qui putent, primo hominem debere 
membrum separatum externae societatis humanae esse, quam bap- 
tizari possit. Quapropter, etsi theoretice considerata ratio dubitandi 
de valore baptismi vix ulla suppetat; tamen quia S. C. C. 12 Julii, 
1794, in Sutrina, baptismum ilium sub conditione iterandum dixit, 
qui infanti tali modo collatus erat, Sanctae Congregationis auctor- 
itas nos prohibet, quominus omnino certum ejusmodi baptismum 
statuamus. Ergo in periculo omnino ita conferendus est, sed postea, 
si infans vivus ex utero prodierit, sub conditione est repetendus. 

Similarly, but more pointedly, is the matter put by the Analecta 
Ecclesiastica (of April, 1896) : Receptum, sane apud omnes est, 
posse instante partu infantem, in utero matris licet omnino latentem, 
cum debita materiae et formae applicatione baptizari, nihilque vel 
ex Scripturis vel ex Traditione proferri, quod talem baptismum in- 
efficacem, vel probabiliter quidem, demonstret. There is, therefore, 



no doubt whatever in regard to the validity of such Baptism in itself. 
Before going further, we wish to comment on the words of Lehm- 
kuhl :"Si infantis caput a secundina (membrane or caul) omnino solu- 
tum . . . aqua tingi potuerit! 3 In order to speak of the validity 
without doubt of such Baptism, this condition is under all circum- 
stances required and indispensable. Gury, it is true, holds (1. c.) : 
Nee obstat illud quod puer adhuc involutus sit in secundina, quia 
haec est veluti pars infantis, and considers, therefore, the Baptism 
even probabilius valid, in case the infant is still enclosed in this caul. 
But here we must give ear to the physicians. The very reliable 
Dr. Capellmann (Pastoral Medicine, p. 139) ; protests against this 
view of Gury's, by reason of the results of the history of develop- 
ment. "The caul," he says, "is not at all in its totality a pars infantis. 
The caul consists, until birth, of three plainly distinguishable, even 
separable, teguments. The two inner teguments, the amnion and 
chorion, may be considered part of the infantile body, inasmuch 
as they are produced by the embryo itself. The outside tegument, 
however, the so-called decidua, originates from the mucus of the 
womb (uterus), and therefore belongs to the mother's body; and 
can not be regarded at all as pars infantis. It follows that the Bap- 
tism of an infant enveloped in this caul or veil can only be of very 
doubtful validity." 

If, however, it will be asked, Baptism in such cases, according to 
the teaching of theologians, can and must be administered puero in 
utero matris, and if no doubt can exist as to the validity of the 
Baptism itself, what meaning can be attributed to the words of the 
Rituale : Nemo in utero matris clausus baptizari debet ? 

In order to give a satisfactory answer, we shall have to view 
the question from the historical standpoint. 

In the above discussion we have only learned the present teaching 



334 



THE CASUIST. 



BAPTIZING AN INFANT IN THE WOMB. 



335 



of theologians, but it must be mentioned that to the question 
utrum puer in utero matris clausus could be baptized, the ancient 
writers gave an answer entirely different. From the time of Petrus 
Lombardus to that of Gabriel Biel (+1495) ^ey a ^ answered this 
question with one accord — negatively. They do so with recourse to 
St. Augustine, and to the part of the Corpus Iuris (cap. Qui ma- 
ternis dist. 4 de Consecratione) , which says: "Quia qui natus secun- 
dum Adam non est, secundum Christum regenerari non potest. Inde 
regula: Qui natus non est, non potest renasci." 

Let us select from* the number of these writers the Angelic Doctor, 
St. Thomas. He deals with our question in the third part of his 
Summa (quaest. 68 art. n). under the head Utrum pueri in mater- 
nis uteris positi sint baptizandi? 

First of all he states, in accordance with his method, some reasons 
which appear to favor the administration of such Baptism; for 
instance, that the grace of Christ must be more efficacious than sin, 
and since these infants are stained with original sin, therefore it 
seems there must be a possibility of imparting to them the grace of 
Christ, by Baptism. Furthermore, it seems that such infant is part 
of the mother; that if, therefore, one baptized the mother, all that 
within her would be simultaneously baptized. Contrary to this view, 
St. Thomas goes on to say, is what St. Augustine wrote in his letter 
to Dardanus : "Nemo renascitur, nisi primo nascatur/' Sed baptismus 
est quaedam spiritualis regeneratio. Non ergo debet aliquis bap- 
tizari, priusquam ex utero nascatur; and the conclusio reads : Cum 
infantis in utero materno existentis corpus aqua ablui non potest, 
patet non posse in materno utero infantem baptizari. Entering into 
the merit of the question itself, St. Thomas then adds : Respondeo 
dicendum, quod de necessitate baptismi est quod corpus baptizandi 
aliquo modo aqua abluatur, cum baptismus sit quaedam abutio. Cor- 



pus autem infantis, antequam nascatur ex utero, non potest aliquo 
modo ablui aqua; nisi forte dicatur, quod ablutio baptismalis, qua 
corpus matris lavatur, ad filium in ventre existentem perveniot. Sed 
hoc esse non potest, turn quia anima pueri, ad cuius sanctificationem 
ordinatur baptismus, distincta est ab anima matris; turn quia cor- 
pus pueri animati iam est formatum et per consequens a corpore 
matris distinctum et ideo baptismus, quo mater baptizatur, non res 
dundat in prolem in utero matris existentem. Unde Augustinus 
. . . . Et ita relinquitur, quod nullo modo infantes in maternis 
uteris existentes baptizari possunt. 

Thus St. Thomas, and with him agree the theologians of the fol- 
lowing centuries ; even Billuart (+1757) remarks to this : Probabilius 
videtur, in casu posito infantem nee licite nee valide posse baptizari. 
Est sententia omnium antiquorum et ex recentioribus auct. Habert, 
Gotti, Tournely, Berti, etc., contra quosdam alios recentiores. 

It will not escape the reader's attention that St. Thomas and the 
other ancient theologians viewed this question differently from St. 
Augustine ; Thomas and the others considered it impossible that the 
materia baptismi could be applied to an infant in the mother's womb. 
It always occurred to them, that because of the inability to reach 
the infant, the mother would again be baptized with the intention of 
thereby imparting the grace of the Sacrament to the infant, and 
this they considered perfectly inoperative. Hence their dictum that 
infants in the mother's womb can neither be lawfully nor validly 
baptized. Progress in medical science on the one hand and experi- 
ence on the other has taught us, that it is quite possible, especially 
instante partu, and not even difficult, to apply the water of regenera- 
tion to infants in the mother's womb, and consequently the answer 
to our question has become a different one. 

For the first time this more recent view of the case is met with in 



m 



33$ 



THE CASUIST. 



Bid's writings, who says : Dicendum breviter, quod in utero tnatris 
puer non potest baptizari, quia in utero tnatris non potest lavari nee 
contingi. . . . Si vero, ut aliquibus placet, puer adhuc latens 
in utero tnatris, quamvis matri coniunctus, aqua corpus eius con- 
tingente, ablueretur vel abstergeretur debita intentione et forma, 
vere puer baptizaretur et salvaretur. (In IV. dist. IV. q. 2 art. 3 dub. 

2 .) 

Similarly Diana and Laymann express themselves. In the middle 
of the seventeenth century Pignatelli wrote, at Rome, in this sense, 
and he stated that the Cardinal Vicar caused a thorough examina- 
tion of the obstetrices, to ascertain if and how in these cases the 
applicatio materiae was possible. As a result of this examination the 
Cardinal Vicar adopted this new view and put it into practice. P. 
Qualdus defends this opinion most strongly and elaborately in his 
work which appeared at Padua in 1710. In an interesting and lucid 
manner Benedict XIV treats our question in his work De Synodo 
Diocesana (bib. VII. cap. 5). There is no doubt whatever, he first 
remarks, that an infant can not be baptized in the mother's womb, 
if it is impossible to apply the water, and it would be heretical to 
hold that the infant would participate in the Sacrament, when ad- 
ministered to the mother in its stead, as already explained by St. 
Augustine (lib. 6 Contra Julianum c. 5), and as St. Thomas also 
teaches. But the question, the learned Pope continues, is a different 
one ; it is : An reserato materni uteri ostio, quod puerperii initio con- 
tingit, valide baptizetur infans, cuius corpusculum, etsi nulla sui 
parte in lucent prodierit, aqua nihilominus saltern per siphunculum 
ttngi potest. It is quite remarkable, he states, how theologians 
differ on this subject, and he names those who are pro, as well as 
those who are contra. He himself sides with those who are pro tali 
baptismo and refutes the opponent's arguments. No final decision 



BAPTIZING AN INFANT IN THE WOMB. 



337 



having been rendered by the Church he considers it the duty of pas- 
tors, for this reason, to instruct the midwives, that in such cases 
they should baptize conditionally, and likewise that in the event of 
the infant being born alive baptism should be conditionally repeated. 

The opponents of the lawfulness and validity of such Baptism sup- 
port their argument by two reasons. Firstly, they say, it is not pos- 
sible to apply the materia Sacramenti, and secondly they quote the 
words of Christ: Nisi quis renatus fuerit denuo (John iii) and 
deduce therefrom with recurrence to St. Augustine and the Corpus 
Iuris, that man must first be born before he can be regenerated by 
water and the Holv Ghost. 

As far as the first reason is concerned, that is settled by the opinion 
and experience of the physicians. In regard to the second reason, 
St. Augustine, to be sure, repeatedly advances this argument, but, 
as Benedict XIV says, the context plainly shows that the holy doc- 
tor intended only to show the uselessness and invalidity of a Bap- 
tism administered to the mother and intended for the infant. 

This is the purpose and the meaning of the passage of the Gratian 
Decree. This is also exactly the case with St. Thomas who, as 
shown by the quoted words, only answers in the negative sense be- 
cause he considered it impossible that the infant could be reached 
with water. The passage in St. John (c. iii) finally must be taken 
and understood in its logical sense, and an exegesis, in which the 
words are taken literally, has no value. How far from the inten- 
tion of the Church herself is such a narrow exegesis, may be seen 
by her action in presenting to our veneration, on the 31st August, a 
saint with the surname Nonnatus. We read in the Breviary also of 
St. Aloysius prius coelo quam terrae nasci visus. Should this not 
suffice, we might, as Benedict XIV (1. c.) writes, with a certain right 
consider him as natus, qui ex abditioribus maternae alvi penetralibus 



< 



33» 



THE CASUIST. 



BAPTIZING AN INFANT IN THE WOMB. 



339 



- 



ad uteri ostium decidit et obstetricis manibus pertractotur." Indeed 
the Church herself ordains (Rituale R. lit. II. c. I, 16) : Si infans 
caput emiserit et periculum mortis immineat, baptizetur in capite, 
nee postea si vivus evaserit, erit iterum baptizandus. In this case, 
too, the nativitas has not taken place completely, and yet it is not 
required that this Baptism be repeated, not even conditionally. 

We believe we have proved that appeal can be made neither to 
the Holy Scriptures, nor to tradition, nor to the teaching of the 
Church, in order to argue for the unlawfulness and invalidity of 
the Baptism in utero matris; on the contrary, Puer adhuc in matris 
utero existens, urgente necessitate, licite et valide potest baptizari; 
debet tamen iterum baptizari sub conditione, si vivus in lucem pro- 
dierit; hoc fluere videtuwx responso S. Congregationis de dato 12 
Julii 1794. We say "fluere videtur/ f for this decision of the Congre- 
gation though a precedent for judging similar cases, is not a strict 
universal law, it was applied to an individual case and even if the 
physician asserted that he most certainly sprinkled the infant's head 
with water, it may still be thought that the Congregation did not 
place implicit belief in this assertion, and for this reason ordained 
the conditional repetition of the Baptism. If, therefore, some one 
should not take this answer of the Congregation to be a general 
strict command to repeat the Baptism in every case, he would not 
appear to be altogether without reason. There seems to result 
from the decision quoted the fact that in every such case Baptism 
may be repeated conditionally. And it will be the safe way to do it 

in every case. 

We return at last to our question : What do the words of the 
Rituale mean : Nemo utero matris clausus baptizari debet, what is 
the sense of these words? It appears that these words should be 
supplemented by the apposition : absque necessitate, and the meaning 



would be : As a general rule it is prohibited to baptize an infant in 
the mother's womb, except in case where there exists danger that the 
infant will not be bom alive, and would, therefore, die without Bap- 
tism. Yet this explanation does not seem to fit very well, for in 
the same chapter of the Rituale such emergency and extraordinary 
cases are already discussed. 

Hence we believe these words of the Rituale are to be taken in 
the meaning of the ancient writers so that they may be para- 
phrased somewhat in the manner following: Nemo in utero matris 
clausus baptizari debet, quia infans ita in utero latitans, ut nulla 
eius pars aqua tingi queat, baptizari nullo modo potest neque aliquid 
infant\ prodesset, si eius loco matris corpus abluceretur. The Rituale 
here, still from the standpoint of the ancient theologians, only rejects 
the heretical opinion, that a child reposing entirely in the mother's 
womb may have to it imparted the grace of regeneration, by rebap- 
tizing the mother. The question, however, as at present answered 
by theologians, regarding the lawfulness and validity of Baptism 
properly administered in such an extraordinary case, the Rituale does 
not take up. 






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REMIGIUS LAFORT, S. T. L. 

CVjw Librorutn 



Imprimatur 



*JOHN M. FARLEY, D. D. 

Archbishop of New York 



New York, October 2, 1908 



PREFACE 



THE generous approval bestowed upon 
The Casuist when it first appeared, two 
years ago, encourages us to continue the series. 
The present volume, like its predecessor, 
contains many original Cases that appeared in 
The Homiletic Monthly. To them have 
been added Cases of particular interest, selected 
from recent periodical literature, and to these 
Cases their authors' names have been appended. 



Copyright, 1908, by JOSEPH F. WAGNER, New York 



< » 



» • 



• • • • « • 



j » « 

• 



• • . » • * * • 

• • •*••• * 

• • • « • • • 



• » 






» * • » 



» • » 

» 

» • 

•• • ♦ 



4 » • 

•• » 



• » 



• * 



\ 



I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 



XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX. 

XXX. 

XXXI. 

XXXII. 
XXXIII. 
XXXIV. 

XXXV. 
XXXVI. 

XXXVII. 

XXXVIII. 



CONTENTS 

PAGE 

Impedimentum Criminis 7 

The Case of a Catholic Lawyer 1 1 

Impedimentum Ligaminis J " 

Plenary Indulgence 2I 

Impediment of Spiritual Relationship < 24 

A Cleric in Minor Orders Acts as Subdeacon 29 

Cremation 33 

Secret Societies 3° 

The Seal of Confession 44 

Anticipating the Office 49 

Disparitas Cultus 53 

A Case of the Impediment of Consanguinity -58 

A Case of Restitution 62 

A Will Case ..:. 65 

Liability for Damage Done by One's Animal 69 

Secret Compensation 75 

Extreme Unction 81 

Concerning a Case of Conscience 80 

Washing the Church Linens 96 

A Marriage Case Under the New Decree 100 

A Case of Restitution 108 

Absolving fenitents Without Admonition 112 

Concerning the Excommunication Incurred by Those Who _ 
Injure the Rulers of the Church, Either in Body, in 

Their Liberty, or in Their Dignity 117 

The Desecration of Altars 121 

Are Informal Betrothals Binding in Conscience ? 125 

Delegation in Assisting at Betrothals 128 

Ne Temere and Catholics of the Oriental Rite. 129 

Marriages Between Latin and Oriental Catholics, or of 

Catholics with Schismatics (Protestants) 130 

Practical Marriage Cases Under the New Decree 133 

Mixed Marriages Under the New Decree 139 

The Validity of Marriages Among Non-Catholics of the 

Same Denomination 144 

Marriage in Danger of Death 149 

Marriage in Cases of Emergency 155 

Arson and Restitution 158 

Marriage by Compulsion 163 

Nullity of a Marriage Owing to Non-Fulfilment of an Im- 
posed Condition 166 

Administration of the Last Sacraments to Children over the 

Age of Six in Danger of Death 169 

The Administration of the Last Sacraments (Incl. Viati- 
cum) to Dangerously Sick Children Under Six Years 
of Age 173 

v 



vi 



XXXIX. 

XL. 

XLI. 

XLII. 

XLIII. 

XLIV. 

XLV. 

XLVI. 

XLVII. 

XLVIII. 

XLIX. 

L. 

LI. 

LII. 

LIII. 

LIV. 

LV. 

LVI. 

LVII. 

LVIII. 

LIX. 

LX. 

LXI. 

LXII. 
LXIII. 
LXIV. 

LXV. 
LXVI. 

LXVII. 

LXVIII. 

LXIX. 

LXX. 

LXXI. 

LXXII. 

LXXIII. 

LXXIV. 



CONTENTS 

PAGE 

Nullity of Marriage Because of Antecedent Insanity 177 

A Railway Disaster Caused by Mischief 179 

The Age for Confirmation 181 

Restitution Owing to the Purchase of Stolen Goods 183 

Furnishing of Non-Catholic Churches 185 

The Extent of Obedientia Canonica 188 

Pilferings of Provisions: A Case of Restitution 192 

A Case of Restitution 195 

Absolution of an Unconscious Person 197 

Baptism of Illegitimate Children 205 

Pastoral Prudence 207 

Invalid Sponsorship 210 

Telepathic Phenomena 212 

The Jurisdiction to Hear Confession 219 

A Musician's Co-operation by Playing in Protestant 

Churches and at Dances 225 

Forgetting to Give Absolution 228 

Simple Vows and Reserved Cases 231 

Admission to Holy Orders 236 

Administration of the Holy Viaticum to One Unconscious 

from a Paralytic Stroke 241 

Conditional Baptisms 248 

Consecration Outside of Holy Mass 252 

An Unbaptized Marriage Candidate in the Confessional 253 

An Consecratum Sit Ciborium Ex Oblivione Extra Cor- 
porate Relictum 256 

The Clergyman's Demeanor 263 

How Can Men be Induced to Frequent Communion? 265 

Celebratio and Binatio, after Breaking the Fast 268 

Application of Probabilism 272 

Do Christians Become Martyrs by Dying in the Voluntary 

Service of Plague- Stricken Patients ? 278 

The Reconciliatio Ecclesiae Subjectively Prescribed, Al- 
though Objectively not Necessary 281 

Children's Confessions 283 

Is it Permissible to Grant Absolution to a Dying Heretic?. 290 

Or do Sepeliendi Parvulos — Adult os 204 

Two Cases of Restitution 299 

Members of Religious Orders and Personal Property .... 303 
Repetition of Extreme Unction During the Same Illness . . . 306 
The Impediment of Clandestinity , , f , ,,,,••,..,••,,.,•»., . 310 



THE CASUIST 



New Casus Conscientiae of General Import, Discussed and Solved 

Vol. II 



L IMPEDIMENTUM CRIMINIS 



Mr. B., a baptized non-Catholic, was validly married to a baptized 
lady, also a non-Catholic. As far as can be learned the marriage 
was in every respect a valid though an unhappy one. For a time 
they lived together, but owing to a disparity of temperament, to- 
gether with other causes, they finally drifted apart. Some years 
after this, when Mrs. B. had fallen into a decline, Mr. B. became 
acquainted with a Catholic woman, who knew that he had a lawful 
wife living, but under a promise that he would marry her as soon 
as his lawful wife should die, she consented to live with him as 
man and wife. After cohabiting thus for a number of years, Mrs. 
B., the lawful wife, dies. The Catholic woman then accompanies Mr. 
B. to a Catholic priest and desires him to perform the marriage cer- 
emony for them. She explains to him the origin and reasons of 
her relations with Mr. B., that she was never married to him, be- 
cause his first wife was living, but still had consented to live with 
him because he promised to marry her on the death of his wife. It 
is quite evident that the Catholic woman knows nothing about the 



\ 



8 THE CASUIST.— VOL. II 

impedimentum criminis, much less the non-Catholic Mr. B. There 
exists a bona fide ignorance on the part of both concerning any such 
impediment. Did this ignorance exempt them from contracting 
this particular impediment? I am aware that ignorance does not 
excuse one from incurring the other impediments to marriage, but 
as there is some controversy about this particular impedimentum 
criminis, what ought a priest to do, practically, in a case like this? 
The parties have no children, but are looked upon by the public as 
lawful husband and wife and it would be a hardship to separate 
them. 

Answer: If possible get a dispensation super impedimento crim- 
inis adulterii and marry them. It is not certain that a dispensation 
is necessary, because it is not certain whether, on account of their 
ignorance of this particular impediment, they contracted it or not. 

The controversy about this particular impediment is famous in 
theology. This impediment first appears in the Corpus Juris, in the 
IV book of the Decretals of Pope Gregory IX, A.D. 1236. Under 
title 7th, ch. 8, we read : 

"Si quis uxore vivente fide data promisit aliam se ducturum, 
vel cum ipsa de facto contraxit, si nee ante nee post {legitima ejus 
superstite) cognovit eandem : quamvis utrique ipsorum pro eo, quod 
in hoc graviter deliquerint, sit poenitentia injungenda; non est tamen 
matrimonium, quod cum ea contraxit, post uxoris obitum dirimen- 
dum. Ceterum tolerari non debet si prius vel postea dum vixerit 
uxor ipsius, Mam adulterio polluisset" 

The reason for this impediment at this time seems to have been 
the relaxation of the rigor of the ancient penitential discipline. 
Under the ancient discipline, those guilty of adultery under a 
promise of marriage, could not get married at all, neither with the 
accomplice, nor with any one else. But when this discipline was 



IMPEDIMENTUM CRIMINIS. 9 

relaxed, there arose the need of some such law as the impedimentum 
criminis to safeguard society from a particular kind of sin. 

Now the question arises: what was the primary object of the 
Pope in creating this impediment? Did he wish it principally to 
act as a punishment for those who committed adultery with a 
promise of marriage? Or did he create it, because of the natural 
indecency there would be in allowing such persons to marry? On 
this question hinges the whole controversy as to whether ignor- 
ance excuses from contracting this impediment. If the primary 
purpose of the impediment was to punish those who committed 
this crime by invalidating their subsequent marriage, then ignorance 
of the existence of the impediment would excuse one from incurring 
it, because where it was not known, it could not act as a deterrent 
and therefore fails of its principal object. But if the first purpose 
of the impediment was not to punish the delinquents, but to forbid 
unions that were wholly against all sense of Christian decency, then, 
of course, ignorance did not save one from the disability of the im- 
pediment, any more than that ignorance would excuse one from 
incurring the impediment of consanguinity or any other of the 
diriment impediments to marriage. This is precisely where the theo- 
logians and canonists divide. They can not agree as to the primary 
nature of the impediment of crime. Some authors of eminent name 
like Ballerini, D'Annibale, Navarrus, etc., etc., claim that this im- 
pediment was intended primarily as a punishment and a deterrent, 
and therefore that ignorance of its existence exempts from it. Others 
of equal fame as theologians and canonists, like Schmalzgruber, 
Reiffenstuhl, Sporer, Diana, etc., maintain that ignorance does not / 
exempt from it, because its first purpose was not to punish the de- 
linquents, but to forbid marriages that shocked the Christian sense 
of decency. 



IO 



THE CASUIST.— VOL. II 



1 



i 
I 

m 



When doctors disagree, who shall decide ? 

Berardi, who is a very practical man, and is held in high esteem 
in Rome, has this to say on the subject: 

"De probabilitate itaque prioris sententiae (ignorance excuses) 
valde dubito; et censeo quod in praxi, sive impedimentum fuerit cog- 
nitum, sive non, dispensatio peti debeat." (Praxis Confess, n. 840.) 
Lehmkuhl (n. 770) holds that the primary object of the impedi- 
ment is the punishment of the delinquents, and that if they are 
already married, although invalidly, still to force them to separate 
would be a "poena gravissima et extraordinary and continues: 
"Quare, saltern post contractum matrimonium, omnino pro probabili 
haberi debet sententia docens, ignorantes hanc poenam non in- 
currere . . .probabile habeo practice, impedimentum non adesse 
dummodo neuter complex legem ecclesiasticam sciverit: licet sua- 
deam, maxime ante nuptias, ut petatur dispensation (L c.) 

Hence we conclude that a dispensation should be procured, super 
impediment criminis adulterii, before performing the marriage 
ceremony for Mr. B. and the Catholic woman. If for any reason it 
be impossible to get the dispensation, the marriage may be safely 
performed, since both were ignorant of the impediment and more 
than likely therefore did not incur it 



IL THE CASE OF A CATHOLIC LAWYER 

Titius is a conscientious Catholic and a lawyer of considerable 
ability. In the practice of his profession, he is often called upon to 
defend persons who are being prosecuted in the courts for some 
crime. Now it sometimes happens that Titius knows, even before the 
case comes to trial, that his client is guilty and that he deserves to be 
punished; nevertheless Titius accepts the conduct of the case, be- 
cause he has a special aptitude for such cases, and because he re- 
ceives larger fees for them, than for the conduct of civil cases. 

But on the other hand, he has serious scruples about defending 
such persons, because he thinks it is against the best interests of 
the community, tending to breed contempt for the law, and afford- 
ing a more or less sure escape from the consequences of its trans- 
gression. 

Question. How is he to be advised? 

Answer. "In the interests of the proper administration of justice," 
says William Lecky, "it is of the utmost importance that every 
cause, however defective, and every criminal, however bad, should 
be fully defended, and it is therefore indispensable that there should 
be a class of men entrusted with this duty. It is the business of the 
judge and of the jury to decide on the merits of the case, but in 
order that they should discharge this function it is necessary that 
the arguments on both sides should be laid before them in the strong- 
est form. The clear interest of society requires this, and a standard 
of professional honor and etiquette is formed for the purpose of 
regulating the action of the advocate. Misstatements of facts or of 
law; misquotations of documents; strong expressions of personal 
opinion, and some other devices by which verdicts may be won, are 
condemned; there are cases which an honorable lawyer will not 

11 



_^___ 



THE CASE OF A CATHOLIC LAWYER 



13 



12 



THE CASUIST.— VOL. II 



accept, and there are cases in which, in the course of a trial, he will 
find it his duty to throw up his brief." 

It can not be denied that the profession of an advocate is fraught 
with many moral dangers. It is more difficult and more dangerous 
than that of either judge or jury. Dr. Arnold thought that it led 
inevitably to moral perversion, involving as it does the indiscrimi- 
nate defense of right and wrong, and in many cases the known sup- 
pression of the truth. It is said that on the feast of St. Yves, a 
saint of Brittany and a lawyer, that the people chant: Advocatus et 
non latro—Res miranda popuh. Indeed, it was this aspect of the 
calling, that drove St. Liguori from the lavTto the Church. Volumes 
have been written, bdh by non-Catholics as well as Catholics, on the 
duties and obligations of advocates, some allowing him a large 
measure of freedom in the conduct of civil and criminal cases, and 
others restricting him to cases that he believes to be just. 

Without entering into a discussion of the merits of these several 
views, as held by these authors, many of whom are men of great 
ability and high character, we shall confine ourselves to a short 
statement of the accepted doctrine of Catholic moralists, regarding 
the duties and practices of advocates. 

First of all, moral theology lays down the general principle that 
it is not lawful for a lawyer to accept any cases not founded in 
justice, nor to defend them by any other than just and honest means. 
If a lawyer were permitted in conscience to accept a dishonest case 
or to defend a just case by unjust means, then he would be permitted 
in conscience to do an injury to the party opposed to him. For the 
party opposed to him, whether it be the state or an individual, has a 
prior claim cr right, rooted in the law of nature, that he shall not be 
injured in his person or in his goods, without just cause, nor by 
any other than just and honest methods. 



After laying down this general principle, the moralists distin- 
guish between civil and criminal cases, and they allow more freedom 
in the conduct of the latter than in that of the former. In regard to 
civil cases, no lawyer is allowed in conscience to accept a case 
which he knows for certain to be unjust. The reason is quite evi- 
dent. An unjust case is an attempt to do another an injury. If the 
injustice of the case is known beforehand, then the plaintiff wilfully 
endeavors to do an unwarranted injury. The lawyer who accepts 
such a case, cognizant of its injustice, co-operates with the plaintiff. 
If he succeed in gaining his suit, he actually does the injury, know- 
ingly and willingly, and is bound in conscience to make reparation. 
If he lose his case, he injures his own client by putting him to un- 
necessary expense, in prosecuting a case which he knew to be 

worthless. 

If during the course of the trial the attorney discovers that the 
case is an unjust one, and if successful, will inflict an injustice on 
the defendant, he must secretly admonish his client to withdraw the 
case, or else he must throw up his brief. This is precisely the line 
of conduct followed by one of the most distinguished lawyers and 
conscientious Catholics in the United States. In the course of a trial, 
some time ago, he suddenly discovered that his client was endeavor- 
ing to cheat the defendant out of a large sum of money. He im- 
mediately informed his client in secret that he must compromise the 
case for one dollar, or he would expose him. We will say here, in 
passing, that we believe, with most theologians and many laymen, 
that a lawyer, like a physician, is justified in exposing a client or 
patient who is wilfully endeavoring to injure an innocent person, 
if after having been secretly admonished to desist, the client or 
patient still perseveres in his evil intent. If the justice of the case 
which the lawyer is asked to accept, if in doubt, the lawyer may 



14 



THE CASUIST.— VOL. //, 



THE CASE OF A CATHOLIC LAWYER 



«5 



accept it, after an understanding with his client Because the courts 
exist for the purpose of settling controversies, and the justice of a 
case, that in the beginning seemed doubtful, may, during the progress 
of the trial, become altogether evident. Thus it is said that Sir 
Matthew Hale, the distinguished English barrister and judge, had 
determined never to accept a case which he did not believe to be 
just, but was led to relax this rule, having found in two instances 
that cases which at first sight seemed wholly worthless were in 
truth well founded. ' 

In criminal cases, a lawyer may defend a guilty person, although 
he is fully advised beforehand of the guilt of his client In fact, 
it is so necessary for the safeguarding of justice that a criminal be 
defended by counsel, that where the accused is not able to retain 
legal help, the same is assigned him by the court. The require- 
ments of the law are thus better subserved and the accused is pro- 
tected in his rights. 

It is a basic principle of our law, that every accused person is held 
to be innocent until proven guilty. Such a person is permitted by 
the law to defend himself against every accusation, be it ever so 
well founded in fact, provided only he make use of no lie or fraud 
or false document or other unjust means in his defense. And all 
this his counsel may do for him. Eventually the administration of 
justice is best promoted by this course. 

Truth is best elicited and difficulties are most effectually disen- 
tangled by the opposite statements of able men. But under no cir- 
cumstances is a lawyer in a criminal case allowed to use unjust 
means in defending his client. He is not allowed to tell lies to the 
judge, nor to produce false witnesses, nor to use spurious docu- 
ments ; because means that are dishonest in themselves are not made 
honest by reason of the end for which they are employed. Hence a if 



an authentic document, v. g. a will, is lost, the lawyer is not allowed 
to substitute a counterfeit document in its stead. While this would 
not be a sin against commutative justice, requiring restitution, it 
would be a grievous sin against the truth. 

In the case of Titius therefore, we say that he is justified in ac- 
cepting the defense of persons whom he knows to be guilty. And 
having engaged to defend them, he must defend them to the best of 
his ability. Only his methods of defense must be just and honest 
It is the privilege of the accused under the law, that even though 
he be guilty, his interests be protected by able counsel, and the 
lawyer who defends him contributes to the better and more equitable 
administration of justice, and to the protection of the rights and 
interests of the citizens. "But necessary and honorable as the pro- 
fession may be, there are sides of it which are far from being in 
accordance with an austere code of ideal morals." 




III. IMPEDIMENTUM LIGAMINIS 

Bertha, a foreigner, unable to speak English, came to this coun- 
try at the age of sixteen years. She was without money, relatives 
or friends, and was on account of her helplessness impelled to a 
marriage with a worthless, drunken sot, a waiter in a restaurant. In 
less than a year Bertha was deserted by this man, who left her a 
physical wreck. In two years' time she was fully cured and was 
proposed to by Cajus, a Catholic young man. She told Cajus of 
her former marriage and they spent a year in tracing the "where- 
abouts" of the first husband, but could find no trace of him whatso- 
ever. Unsuccessful in their search, they concluded to get married, 
and have been living together ever since, i. e. about fifteen years. 
They now have a family of several children. They are respected by 
the community in which they live, are looked upon as good Catho- 
lics, and bringing up all their children in the faith. They feel that 
they can not separate, if for no other reason, for the children's sake, 
and would like to have their case straightened out, if possible. Dur- 
ing these years they have looked for some trace of the first husband 
with as much diligence as their circumstances would admit of, but 
have found absolutely no trace of him. He was a reckless dissi- 
pated roue fifteen years ago and they think he must be dead. 

Answer. This is a difficult case. On the one hand there is a 
question of a diriment impediment, which can not be removed by 
any ecclesiastical dispensation, and on the other hand there is ques- 
tion of breaking up a family and stigmatizing the children, or of 
compelling the parents to live a continent life, which as Lacroix says, 
"durissimum est compellere homines, culpae immunes, ut vitam coeli- 
bem ducant, ad hoc autem compellerentur si uti non possint Matri- 
monio" In the first place, there can be no question, practically 

16 



IMPEDIMENTUM LIGAMINIS 



17 



speaking, of a separation. The children are young and require the 
care of both parents. The scandal and sensation that would neces- 
sarily follow a separation, would rule the very thought of it out of 
court. The only alternatives left for the confessor to consider are, 
whether the parties should be compelled "ut vitam coelibem ducant/' 
or is such a construction of the divine and ecclesiastical law possible 
that the parties "uti possint Matrimonio." 

There can be no question of the truth of what Lacroix says, 
"durissimum est compellere homines, culpae immunes, ut vitam 
coelibem ducant" 

If Bertha and Cajus are at the present moment, in bona fide, or 
even in dubia fide, about the perfect legitimacy of their marital 
relations, then for the good of all concerned, their good faith — 
bona fides — must not be disturbed, and if they are in dubia fide, 
i. e., they do not know whether they are lawfully married in the eyes 
of God and the Church, it may be possible to change this fides dubia 
into fides bona et certa, that is to put their consciences at rest about 
their marriage, in which case prudence and discretion would dictate 
that this would be the line of conduct to be pursued. 

The question for us to decide therefore is : Were Bertha and Cajus 
in good faith, when they got married? Did they believe honestly 
and sincerely that they had sufficient proof of the death of the first 
husband, to justify them in marrying? Or were they in dubia fide? 
That is, did they fear that notwithstanding their investigations, the 
first husband might nevertheless be alive, and the marriage they 
were then contracting might be invalid ? And if they were in dubia 
fide, fifteen years ago, when they contracted the present marriage, 
are they necessarily now, and without further inquiry, still in dubia 
fide? Or may they not be in good faith now (i. e., judging honestly 
that the Church does not require any other proof of the death of the 



1 



i8 



THE CASUIST.— VOL. II 



IMPEDIMENTUM LIGAMINIS 



19 



first husband than his complete disappearance for eighteen years, 
considering his character, and physical condition) even if they 
were in dubia fide when the marriage was contracted? There is no 
doubt but that Bertha and Cajus entered into the marriage contract 
before the death of the first husband was fully established. They 
did all that was in their power, considering their circumstances, to 
discover and establish the fact of the first husband's death, but still 
the fact of his death remained uncertain. Now the question is, can 
they ever be said to have entered into the second marriage in good 
faith and may we proceed to judge their marriage according to the 
rules which presuppose them to have been in good faith when they 
contracted the second marriage? We are fully aware that some 
theologians deny the possibility of good faith under the circum- 
stances. But other theologians, v. g. Lacroix, Lehmkuhl, etc., hold 
that it is not altogether impossible that in a given case, the second 
marriage may have been contracted in good faith, and the parties to 
it may be left undisturbed. Lacroix treats this case at considerable 
length in the Vlth book of his treatise on marriage, p. iii. He says in 
effect, that Bertha may judge in good faith, upon probable argu- 
ments only, that her first husband is dead, and she may not know 
that any greater certainty is required on this point. Wherefore she 
may be said to have contracted in good faith, if she innocently 
thought that she could lawfully marry again, while there existed 
doubt about the death of her first husband, considering the circum- 
stances of her case, although she might know in a general way, that 
it was not allowed to marry again during the lifetime of her first 
husband. On the contrary, continues Lacroix, if she entered into 
the second marriage, fearing that she might be sinning, she acted in 
bad faith. To this Lehmkuhl adds, that the fear or remorse which 
agitated Bertha, while contracting the second marriage, lest she 



might be committing sin, may have arisen from other causes, v. g. 
because she married outside the Church, without publication of the 
banns, etc., and the fact that she feared lest she might be sinning 
in contracting the second marriage, is not of itself conclusive proof 
of bad faith on account of a former marriage tie. The cause of such 
fear and remorse would have to be examined into, in order to dis- 
cover whether it was evidence of bad faith or not. 

In the present case, Bertha may have contracted the second mar- 
riage in dubia -fide. That is she may have been in doubt as to 
whether she had sufficiently investigated the death of her first hus- 
band, according to the requirements of the Church. Three years 
had elapsed between the disappearance of her first husband and her 
second marriage. She may have doubted at the time whether there 
was a sufficient interval to justify her in taking for granted that 
her husband was dead, notwithstanding her fruitless efforts to trace 
him. But now it is eighteen years since he disappeared, and con- 
sidering his character and physical condition at the time, she may 
very easily believe now that he is dead, although she did not believe 
it so firmly fifteen years ago, when she contracted the second mar- 
riage. She may therefore believe now bona fide, that any impediment 
ligaminis has long since been removed by death and that nothing 
prevents her being united now in lawful wedlock to Cajus. 

The lapse of time has intervened to turn what was a fides dubia 
fifteen years ago, into a fides bona now. We do not say that this 
is so in the case of Bertha, because all we know about her is what 
is stated in the case as given above. But we judge that what we 
say will fit her case. And the circumstances of her case being what 
they are, we think, salvo meliori judicio, she might be permitted to 
renew her consent, which would confirm her good faith, and be left 
in peace. Note also the following decision: 



20 



THE CASUIST.— VOL. II 



The Holy Office was asked, March 22, 1865, whether a woman, 
who had waited in vain for the return of her husband, and who, judg- 
ing after three years that he was dead, had married again in good 
faith, could be allowed to continue in the second union, until it be 
established beyond doubt that the first husband was living? The 
Holy Office answered: 

'Leave them in good faith." 

'Mulier, quum frustra reditum tnariti expectasset, post tres annos 
existimans ipsum jam mortuum esse, bona fide alii viro in matri- 
tnonio se conjunxit, et cum impossible nunc sit investigate } utrum 
primus maritus vivat adhuc, aut reapse mortuus sit, quaeritur, utrum 
relinqua ipsa possit in usu secundi matrimonii contracti donee certi- 
tudo hdbeatur de vita primi virif" 
Resp. "Relinquendos esse in bona fide/' 



Ml 



it 



IV. PLENARY INDULGENCE 



Titius goes to Confession and confesses all his mortal sins and as 
many of his venial sins as he can remember. Thereupon he elicits 
contrition for all his sins, both mortal and venial, and resolves to 
avoid all mortal sins in the future, and as many of the venial sins 
as the grace of God shall enable him to avoid. Then he receives 
absolution. Are not all his sins, both mortal and venial, remitted 
quoad culpamf If now, before committing any new sins, he com- 
plies with all the requirements for gaining a plenary indulgence!, 
does he not gain the indulgence ? Why then do the theologians say 
that it is very rare that any one gains a plenary indulgence? For 
instance, Father Noldin says: "Licet omnis indulgentia plenaria, 
quantum est ex parte concedentis, totant poenam temporalem delere 
possit, non tamen omnes earn plene, sed quamplurimi solum ex parte 
lucrantur: in illis ejiim, qui nullam culpam, neque venialem habent 
(is not this the case of Titius?) omnes poenae delentur : in illis autem 
qui adhuc aliquod veniale peccatum habent, remittuntur quidem poe- 
nae debitae pro culpis jam deletis, non autem illae, quae debentur 
culpae adhuc remanenti." — p. 355. 

Answer. — There are two questions involved in the above case. 
The first question is : Are not all sins forgiven quoad culpam if they 
are confessed as fully as possible, and repented of? The second 
question is : Why should it be so difficult to gain a plenary indul- 
gence, in such a case, since a plenary indulgence is gained by those 
who are free from all culpa of sin, and comply with the conditions 
of the indulgence ? 

Ad. I. When a penitent confesses all his mortal sins and as many 
of his venial sins as he can remember, and is then sorry for all his 
sins both mortal and venial, ex motivo universali, or if he be sorry for 

21 



22 



THE CASUIST.— VOL. II 



PLENARY INDULGENCE 



23 



his mortal sins ex motivo particulari and for his venial sins ex mo- 
tivo universali, v. g., because they are a refusal of obedience 
to God, or because they keep the penitent from being united more 
closely to God, and if then the penitent resolve to avoid not only all 
mortal sin in the future, but all venial sin, in as far as the, grace of 
God will enable him, and then receives absolution, all his sins, both 
mortal and venial are remitted quoad culpam, and all his mortal 
sins, quoad poenam aeternam, but not quoad poenam ternporalem. 

Ad. II. If now he comply with all the conditions for gaining a 
plenary indulgence, and does not in the mean time commit the 
slightest fault, then he gains the plenary indulgence. But as it is 
almost impossible for a person not to commit some very slight sin, 
v. g., of impatience, or lack of perfect charity toward one's neighbor, 
etc., apart from a very special grace of God, which is not ordinarily 
given, then the penitent does not gain a plenary indulgence, i. e., 
there is a temporal punishment and a culpa remaining on account 
of the sin of impatience or lack of charity," which prevents the gain- 
ing of a perfect plenary indulgence. Ballerini says: Raro fidelis 
affectum omnem vel minimum erga quodlibet veniale exuunt, ac 
sufficienter dolorem de omnibus venialibus its concipiunt ut omnem 
remissionem cousequuntur. 

Theoretically, a penitent confessing all the venial sins that he can 
remember, and eliciting sorrow for all venial sins, confessed and not 
confessed, ex motivo universali, i. e., a motive equally applicable to 
all venial sin, and who then resolves to avoid all venial sin in the 
future, in quantum potest adjuvante gratia Dei, such a penitent is 
absolved from all "culpa peccati," both mortal and venial, and if 
he does not commit any new venial sin before complying with all 
the conditions of a plenary indulgence, then certainly he gains the 
plenary indulgence plenarie. 



Practically, this happens so rarely, that theologians say that it is 
very rare that a person gains a plenary indulgence plenarie. 

But although the indulgence granted "ut plenaria" is not gained 
plenarie, or plenissime, it is certainly gained partialiter, and the 
opinion which says tliat an indulgence, granted ut plenaria, must be 
gained either plenarie or nullo modo } ita ut totum vel nullum effec- 
tum sortiri debeat, is not a probable opinion. 



IMPEDIMENT OF SPIRITUAL RELATIONSHIP. 



*5 



V. IMPEDIMENT OF SPIRITUAL RELATIONSHIP 

) 
"I have secured a dispensation from the banns for a marriage case, 

the reason being ad concubinatum finiendum et ad prolem legitiman- 

dam. Now I find that the woman in the case gave private Baptism 

to one of the children, who was at the point of death. Do I have 

to get a dispensation super impedimento cognationis spiritualis? 

Furthermore, is it of obligation to have witnesses at this marriage ? 

The contracting parties have lived together nearly twenty years. 

Would one witness suffice, or may not the priest act as a witness ? 

"Thirdly, the man has asthma and, I believe, rheumatism or 
dropsy ; he can not, or at least only with great difficulty, get to the 
church. The statutes of the diocese forbid marriage in the house 
without permission. The man is not confined to his bed. Must I get 
permission to marry them in the house ?" 

Answer. The first question proposed above is one of spiritual re- 
lationship arising from the administration of private Baptism. Bap- 
tism, being a regeneration or new birth, begets relationship, in the 
spiritual order, in the same way that generation in the order of 
nature begets blood relationship. The Church has made this spir- 
itual relationship a diriment impediment to marriage. As nature 
abhors marriages between close blood relations, so does grace abom- 
inate marriages between the spiritually related. Such marriages 
are looked upon by the Church as forbidden by the Christian sense 
of decency, of filial piety and mutual respect engendered by the 
grace of God. In the interests of religion, therefore, the Church 
forbids such marriages. 

According to the Council of Trent (ss. 24), marriage is void 
between the following persons, spiritually related by Baptism : 1. Be- 

24 



tween the minister and the baptized; 2. Between the minister and 
the parents of the baptized; 3. Between the godparents and the 
baptized; 4. Between the godparents and the parents of the bap- 
tized. 

To contract this impediment, the Baptism must be validly even 
though illicitly administered. A priest who merely supplies the 
solemn ceremonies of Baptism, but who does not actually baptize, 
does not contract any spiritual relationship, because no spiritual re- 
generation has taken place. Again, this impediment is by its very 
nature reciprocal; it can not, therefore, be contracted by one person, 
unless it is contracted at the same time by the others, and since it is 
juris ecclesiastici, and does not affect the unbaptized, therefore if 
a baptized person administer Baptism to the child of unbaptized 
parents, he does not thereby contract spiritual relationship with 
the parents. This opinion is supported by Lacroix, Bonacina, Ledes- 
ma, Sanchez, and others against equally grave theologians. 

In like manner, if a baptized mother baptized her own child by an 
unbaptized man, she would not thereby contract any spiritual rela- 
tionship with him, and might be married to him later on, without 
the need of any dispensation super impedimento cognationis spirit- 
ualis. Again, if a Catholic man marries a convert who is baptized 
sub conditione on joining the Church, and for whom the Catholic 
man acts as sponsor, a dispensation is needed, because the presump- 
tion is against the validity of the non-Catholic Baptism, the probable 
validity of which could hardly be established. 

We come now to the question whether spiritual relationship arises 
from private Baptism administered in danger of death. As regards 
the minister of the Sacrament, all are agreed that he contracts 
spiritual relationship both with the person baptized and with his or 
her parents, whether it be a case of necessity or not. A valid Bap- 



■ 



/ 



26 



THE CASUIST— VOL. U 



tism, whether solemn or private, is a new birth, and as such creates 
spiritual relationship. 

Godparents are not required for private Baptism, hence there 
seems to be some doubt whether they contract spiritual relation- 
ship with the natural parents of the child. St. Alphonsus says that 
more probably they do not contract such relationship. However, 
the Congregation of the Council, in 1678, in answer to the ques- 
tion, replied that godparents, even in private Baptism, do contract 
spiritual relationship with the baptized, and his or her parents. 

A mother baptizing her illegitimate offspring in danger of death, 
thereby contracts spiritual relationship with the father of the child, 
provided the father is baptized, and she can not marry the father 
later on, unless a dispensation from the diriment impediment of 
spiritual relationship be first procured. But if a father or mother 
baptize their legitimate offspring, whether in a case of necessity or 
outside of it, they do not contract any relationship, and are not de- 
prived of the jus petendi debitum, because such a deprivation is by 
nature penal, and is not stated in the law. 

The second question asked above is whether witnesses are required 

for this marriage ? 

Before the decree of "Ne temere" went into effect, that is before 
Easter Sunday, 1908, in those places where the "Tametsi" of the 
Council of Trent was never published, no witnesses were required 
for the validity of the marriage, though two witnesses were required 
by the law of the Church for the licit performance of this marriage. 
However, since Easter, 1908, an important change has been made in 
this most important matter. According to the present regulation 
of the Church, as laid down in the recent decree (August, 1907) 
Ne temere, two witnesses are required in every case for the valid 












IMPEDIMENT OF SPIRITUAL RELATIONSHIP 



27 



celebration of any marriage. Section III of this decree reads 

as follows: 

"Only those marriages are valid which are contracted before the 
parish priest or the ordinary of the place or a priest delegated by 
either of these and at least two witnesses." 

Section VII further adds : "When danger of death is imminent and 
where the parish priest or the ordinary of the place or a priest dele- 
gated by either of these can not be had, in order to provide for the 
relief of conscience (and, should the case require it), for the legiti- 
matization of offspring, marriage may be contracted validly and 
licitly, before any priest and two witnesses." Again, Section VIII 
reads': "Should it happen that in any district the parish priest or the 
ordinary of the place or a priest delegated by either of them, before 
whom marriage can be celebrated, is not to be had, and that this 
condition of things has lasted for a month, marriage may be validly 
and licitly entered upon by the formal declaration of consent made 
by the spouses in the presence of two witnesses." 

Hence it is clear that in every case of marriage witnesses are re- 
quired, and therefore in the case before us the marriage would not 
be valid unless contracted in the presence of two witnessss. 

The third question to which an answer is desired regards mar- 
rying the parties in their homes, which is forbidden by the statutes 

of the diocese. 

The statutes of the diocese, forbidding "home weddings," evi- 
dently do not contemplate a case like this one. The purpose of the 
statute is to discourage home weddings, where there is no grave 
reason why the parties should not be married in the church. There 
is a grave reason here, in fact several grave reasons, why these 
people should be married at home, and the priest may, in the present 
instance, declare the statute suspended. 



c^ 



28 



THE CASUIST— VOL. II 



If there be any real hardship in approaching the bishop for a 
dispensation, for some particular reason, and if it be seriously diffi- 
cult to provide prudent witnesses, then the law of having witnesses 
ceases to bind. But as this does not appear to be the case in the 
present instance, it would be better to procure a dispensation. 




VL A CLERIC IN MINOR ORDERS ACTS AS 

SUBDEACON 

John is a seminarian in minor orders. His home is in a country 
parish where there are two priests. The pastor asks John to act 
as subdeacon at the solemn Mass on Christmas Day. If John does 
not act, it will be impossible to have a solemn Mass. It is desirable 
that John should act. Is there any canonical prohibition, forbidding 
John, in these circumstances, to act as subdeacon? And if he acts 
as such, does he become irregular? 

Answer. The general law of the Church forbids a cleric, under 
pain of incurring irregularity, to exercise solemnly, a sacred order 
that he has not received. The law reads thus : "Clericus qui scienter 
et sollemniter exercet ordinem sacrum, quern non habet, fit irregu- 
laris/' In the first place it must be observed that the canon is 
directed against clerics, i. e., one must be at least a tonsured clerk, 
to fall under the canon. Therefore a layman, who, pretending to be 
a priest, should say Mass, or hear Confessions, would not incur 
any irregularity by such acts, although he would sin very grievously. 
Neither would a layman, even though he were a seminarian and 
wore the clerical garb, become irregular by acting as deacon or 
subdeacon at a solemn Mass. One must be at least tonsured to be 
affected by this canon. The next thing to be observed is that irreg- 
ularity is incurred only when a cleric exercises a sacred order, which 
he has not received. Since the discipline of the Church to-day 
allows laymen to exercise solemnly the minor orders, clerics do not 
become irregular for exercising them. The irregularity begins with 
the solemn exercise of the subdeaconate by a minor cleric. The 
other terms of the canon that require an explanation are: 

29 



3° 



THE CASUIST.— VOL II 



A CLERIC ACTS AS SUBDEACON 



3* 



1. Scienter, 1. e., the cleric must know that he has not the 
sacred order, which he is now exercising, and moreover he must 
be aware of the irregularity. If he be ignorant of the irregularity, 
he does not sin grievously, and therefore does not incur the censure. 

2. Sollemniter. When do canonists consider a cleric to have sol- 
emnly exercised a sacred order? If the act which the cleric exer- 
cises, is never exercised, except by those who have received the 
order, then it is always done sollemniter. For instance, since Ex- 
treme Unction is never administered except by an ordained priest, 
a cleric not in priest's orders, who would attempt to anoint the 
dying, would necessarily act solemnly and become irregular. In 
like manner also a priest, who would administer Confirmation, would 
of necessity, be acting solemnly, and would become irregular. But 
if the order which the cleric exercises, is sometimes exercised by 
others than those who have received it, v. g. one in minor orders 
may sometimes act as subdeacon at a solemn Mass, then a cleric is 
said to exercise solemnly a sacred order, which he has not received 
if he exercises the act exactly like those do who have received the 
order and if he wears the distinctive ornament of the sacred order. 
Thus the distinctive ornament of a subdeacon is the maniple, and of 
the deacon the stole. If a clerk in minor orders acts as subdeacon 
at a solemn Mass and wears the maniple, he becomes irregular. If 
he omits the maniple, he does not incur any irregularity. Neither 
does a subdeacon become irregular for acting as a deacon at a 
solemn Mass, if he omits the stole, because the wearing of the stole 
renders the act a solemn exercise of the order and brings it under 
the canon. 

On March 10, 1906, the Congregation of Rites issued a decree 
which was confirmed by the Holy Father, and which covers the 
points at issue here. The decree says : 






"Clericus ad munus subdiaconi obeundum in Missa solemni, nun- 
quam deputetur, nisi adsit rationabilis causa et in minoribus ordi- 
nibus sit constitutus, ant saltern sacra tonsura initiatus" 

The decree forbids laymen to act as subdeacons in a solemn Mass. 
The wording is "num-quam deputetur" That a man who is not in 
subdeacon's orders, may act as a subdeacon at a solemn Mass, two 
conditions are required: 

1. That the man be at least tonsured. 

2. That there be real need for him to act. 

Here it might be inquired whether it be the purpose of the 
decree to forbid even seminarians, who are not tonsured, to act as 
subdeacons in a case of necessity. We hardly think it is. The 
decree seems to be intended primarily for those countries where 
every person who begins to study for the priesthood is immediately 
tonsured, even though he be but a young boy. In those countries, 
generally speaking, there are no seminarians who are not tonsured. 
The custom exists in some countries of Europe on solemn feasts, of 
having a layman, not a seminarian, but a man who has no notion of 
ever being a priest, act as subdeacon. Even a married man, v. g. 
the sexton of the church or the sacristan is at times permitted 
to take the place of the subdeacon. If there were a seminarian in 
the parish, he of course would be tonsured and very likely in minor 
orders and in a few years a subdeacon. His acting as subdeacon 
would not scandalize the faithful, whereas the participation of the 
layman in the sacred function does scandalize the faithful. In 
countries like the United States, young men, studying for the 
priesthood, live in the seminary and wear the cassock, although they 
may not be tonsured. They hold the same station among the 
laity as tonsured clerks do in other countries. They are looked 
upon as clerics and the same conduct is required of them as is 



\ 






32 



THE CASUIST.— VOL II 



required of tonsured clerks elsewhere. In a country like Germany, 
where many men follow the courses of theology at the university and 
intend to be priests, but who have never lived in a seminary, nor 
dressed as clerics, it is unbecoming to allow them to act as sub- 
deacons, and we understand that the decree forbids such action. 
The decree includes also those young men who, in a country like 
France or Canada, enter the great seminary to test their vocation, 
but who do not adopt any clerical dress, nor in any way consider 
themselves as clerics. It is evident that these should not appear at 
the altar in sacred vestments to take part in a solemn Mass. 

In case a cleric not in sacred orders acts as subdeacon at a 
solemn Mass, the decree of the Congregation of Rites just men- 
tioned makes a few observations for his guidance. He is to vest 
exactly like the subdeacon, omitting only the maniple. He is to 
perform all the ceremonies, as if he were a subdeacon, except the 
following : 

1. He must not pour the water into the chalice at the offertory, 
but must let the deacon do so. 

2. He must not touch the chalice infra actionem, nor cover it 
with the pall, nor uncover it. 

3. After the communion, he must not purify the chalice, the cele- 
brant must purify it ; after which he (the subdeacon) covers it with 
the veil and burse and carries it to the side table. 



VII. CREMATION 

Mr. B., a firm believer in modern methods of public sanitation, 
has made provision in his will that after his death his body shall 
be cremated. May he receive the last Sacraments and Christian 
burial, and why is the Church so opposed to cremation? 

Answer. All civilized nations, both ancient and modern, have re- 
garded the burial of the dead as a religious rite. In ancient Rome, it 
took precedence over every other service, whether public or private. 
The Roman soldier could demand leave of absence from the army, 
not only to bury hjis dead, but also for the feast of the purification 
of the family, called feriae denicales, which occurred nine days 
after the burial. Not only were the last rites of the dead considered 
religious or sacred, but the burial place also, by virtue of the laws, 
enjoyed a religious character. It was quite natural, therefore, that, 
in the nascent Church, the Christians, professing a different religion 
from the Romans, should also differentiate themselves from the 
pagans in the manner and place of burying their dead. The com- 
mon practice in pagan Rome, at the beginning of the Christian era, 
was to burn the bodies of the dead. This had not been the ancient 
custom, even among the Romans, and at the dawn of Christianity 
there still prevailed among them the practice of cutting off a 
bone from the corpse, or rescuing one from the fire, in order to 
deposit it in the earth. The reason for this was that the burial 
of the ashes of the dead after cremation did not render the burial 
place sacred; it acquired a religious or sacred character and was 
brought under the protection of the laws only by the burial of 
some part or bone of the body, that had not been cremated. Each 
family had its own burial place, restricted to the parents and 
children and brothers and sisters, and a few intimate friends and 

33 






34 



THE CASUIST.— VOL. II 



CREMATION 



35 



favorite freedmen. The idea of a general burial place for all the 
inhabitants of a town or district was unknown to the ancients. 
The indiscriminate burial of friends and foes, relatives and 
strangers, in one monument where their ashes would be mingled 
together, was especially abhorred by the people and severely pun- 
ished by the law. It was to be expected, therefore, that the Chris- 
tians, who believed in the resurrection of the body as one of the 
great articles of the new faith, should have had, from the very 
beginning, a great religious care for the bodies of their dead and 
for all the rites attending their burial. They adhered to the more 
ancient custom of the Romans, as well as of the Jews, of burying 
their dead in the ground. They detested the practice, prevailing at 
that time among the Romans, of burning the bodies of the dead, 
just as they abhorred the other religious rites and practices of the 
pagans. Minucius Felix, in the third century, says that the Chris- 
tians execrate the funeral pile and condemn burial by fire. "We 
follow," he says, "the ancient and better plan of burying in the 

ground." 

From the early writers and Fathers of the Church, we gather 
many reasons why the Christians preferred rather to bury the 
bodies of their dead in the ground than to burn them. Burn- 
ing the dead was a pagan religious rite of the time, from which, as 
from all the religious rites of the pagans, the Christians wished to 
dissociate themselves. One of the central truths of the Christian 
faith was the resurrection of the body. Cremation seemed to deny 
this doctrine. The Saviour was buried in a tomb, from which He 
rose triumphant over death. The disciple desired to be buried after 
the manner of his Master, hoping to rise again in the body, like his 
Master, from the grave. The immortality of the soul and the 
resurrection of the body were two great beacon lights that illumined 



the darkness and the sufferings of the first Christians. Burning 
the body of the dead seemed to them a confession of the total an- 
nihilation of the whole man. It shocked their sense of reverence 
and affection for the dead, but more especially their religious sense. 
And thus, from the very beginning of Christianity, burying the bodies 
of the dead in the ground became intimately associated with the 
Christian faith, and all the rites and ceremonies of the Church that 
accompany the burial of the dead, the prayers of the Missal and of 
the Ritual have grown up around and been developed according to 
the custom of burying the dead in the ground. When we have the 
bodies of our dead near us we are reminded to pray and offer 
sacrifice for them, we erect monuments over them that stimulate 
our piety and proclaim aloud our belief in the resurrection of the 
body and life everlasting. The custom fosters reverence for the 
dead, whose bodies have been sanctified by so many Sacraments. 
It is not as repugnant to our natural instincts to allow our dead to 
return to dust by the slow processes of tender mother earth, as to 
violently burn and destroy them by fire. These are but a few of the 
reasons why the Church, throughout the ages, has preferred to 
bury the bodies of her children in the earth rather than to destroy 
them by fire. 

Cremation does not necessarily deny any truth of revelation. It 
does not necessarily imply a denial either of the immortality of the 
soul or of the resurrection of the body. Whether the body returns 
to dust slowly by the action of the forces of the earth, or quickly 
by the action of the fire, is, in itself, a matter of indifference. 

The Church permits her missionaries, as in India, where cre- 
mation is the ordinary method of disposing of the bodies of the 
dead, to remain passive in cases where they know that the bodies of 
neophytes are to be burned. (Cong, de prop, fide, Sept. 27, 1884.) 



36 



THE CASUIST.— VOL. II 



But circumstances may add a very definite character to some- 
thing that is quite indifferent in itself. And this is the case with 
cremation, generally speaking. The Church is cognizant of the 
fact, that the cremation of human bodies, to-day, is not only a de- 
parture from the time-honored and world-wide Christian custom 
of burying in the ground, but that it is meant, as a rule, to be a pro- 
test against the Christian faith. The promoters of cremation are 
endeavoring to rehabilitate the ancient pagan custom of disposing 
of the bodies of the dead in order to put an end to Christian ceme- 
teries and Christian burial rites and practices, in order to destroy 
the powerful evidence they bear to the Christian faith, and the 
influence they exert in promoting Christian piety. By cremating 
the human body, they wish to signify the total annihilation of man 
by death. Thus cremation becomes, per accidens, & profession of 
heresy and an attack on the Christian faith. Hence the Church 
forbids it. In particular circumstances, as, v. g., during an epidemic, 
the Church makes no objection to the burning of the human body. 
The only argument that can be urged in favor of cremation is the 
argument founded on the consideration of the public health. But 
the public health is already amply protected by the laws of the 
Church regarding the location of cemeteries and the manner of 

burying the body. 

The Congregation of the Holy Office has repeatedly, in the last 
twenty-five years, issued decrees prohibiting the cremation of the 
bodies of the dead. The following is a summary of these decrees : 

It is forbidden for Catholics to belong to any society or organ- 
ization whose object is the cremation of the bodies of the dead; 
and if such society be in any way affiliated to the Masons, its mem- 
bers fall under the ban of excommunication. 

It is forbidden for a Catholic to order his own body, or the body 



CREMATION 



37 



of any one else, burned; a Catholic may sometimes co-operate, 
materialiter, in cremating the bodies of the dead, either as officials 
or as workmen, if such co-operation is not desired precisely because 
the officials or workmen are Catholics, and as a sign of contempt 
for the Catholic faith and if the cremation contain no profession of 
Masonry. 

It is not allowed to give the last Sacraments to a dying man or 
woman, if he or she insists that after death the body shall be cre- 
mated ; neither is it allowed to give the remains Christian burial, if 
it be known publicly that the deceased continued in this mind to the 
end of life. 

It is not allowed to say Mass for such persons publicly or in the 
name of the Church, but Mass may be offered privately. 

It is lawful to perform the last rites over the dead, either at their 
home or else in the Church, but not at the crematory, if it was not 
the will of the dead that his body be cremated, but the will of those 
in charge of the funeral, provided, of course, that all scandal be 
removed. 

Again, it is permitted to give Christian burial to those who order 
that after their death their bodies shall be burned, provided they 
are ignorant of the Church's prohibition; also to those who, after 
having made such provision in defiance of the Church's laws, de- 
sired sincerely, before their death, to revoke the provision, but 
who for some valid reason were unable to do so. 

This is a short synopsis of all the decrees concerning cremation, 
issued by the Holy Office in the last twenty-five years. 

Mr. B., therefore, may not receive the Sacraments of the Church, 
as long as he continues in his resolve to have his body cremated, be- 
cause he is in mortal sin, defying a grave law of the Church. And 
if it be known by the general public that he persevered to the end 
of his life in his resolve to have his body cremated, he can not 
receive Christian burial. 



Vm. SECRET SOCIETIES 

A convert to the Catholic faith is a knight of Pythias. He was a 
knight for many years before he became a Catholic. He carries a 
few thousand dollars life insurance in the order. As he is a poor 
man, it would be a great hardship for him to quit the order and for- 
feit this insurance. What shall he do about it ? 

Answer. — There are two categories of so-called secret societies, 
forbidden to Catholics: (a) societies, like the Masons, that are for- 
bidden under censure, i. e., under pain of excommunication; (b) 
societies, like the Knights of Pythias, that are forbidden under pain 
of sin, but not under censure. 

On October n, 1869, Pope Pius IX issued his famous Bull, 
Apostolicae Sedis, in which among many other censures, reserved 
to the Holy See, is the censure of excommunication pronounced 
against "nomen dantes sectae Masonicae aut Carbonariae aut aliis 
ejusdem generis sectis, quae contra ecclesiam vel legitimas potes- 
fates seu palam seu clandestine machinantur necnon eisdem sectis 
favorem qualemcunque praestantes earumque occultos coryphaeos 
ac duces non denuntiantes, donee non renuntiaverint" 

Two qualifications are required in order that a society or organ- 
ization fall under the bann of excommunication: (a) its members 
must constitute a sect, that is, they must be united very closely 
together by the profession of the same principles, that the society 
as a body professes and advocates; (b) it must war against the 
Church or against the State, even though it exist for other purposes 
also. 

The societies generally understood to possess these two qualifi- 
cations and therefore to be forbidden under pain of excommunication 



are: 



SECRET SOCIETIES 



39 



» 



38 



\ 
,» 



1. The Masons. Pope Clement XII, in 1738, first excommunicated 
the Masons. Then Benedict XIV, in 1751, reaffirmed the censure, 
as did Leo XII, in 1825, Pius VIII, in 1829, Pius IX, in 1869, in the 
Bull Apostolicae Sedis, just mentioned, and finally Leo XIII, in 
1884, in the Bull "Hamanum genus" 

2. The Carbonari, a secret political society organized in Italy, 
in the beginning of the last century, whose purpose was the over- 
throw of the existing government and the establishment of a 
republic. They were excommunicated by Pius VIII and Leo XII. 

3. The Fenians. This society was prohibited under censure of 
excommunication, by the Holy Office, January 12, 1870. 

4. Societies of Anarchists and Nihilists, in Russia especially, but 
wherever they may exist, since their purpose brings them under 
the ban of excommunication. 

No Catholic, therefore, may belong to any of the above named 
societies, without committing mortal sin, and at the same time in- 
curring excommunication, which excommunication is reserved to 
the Holy See. 

In the second category of forbidden societies, namely, of those 
that are forbidden under pain of mortal sin, but without the censure 
of excommunication, are to be placed the three societies, expressly 
mentioned in the official papal documents, that is to say : 

1. Odd Fellows ; 2. Knights of Pythias ; 3. Sons of Temperance. 

There are other societies also forbidden under pain of mortal 
sin, v. g., the Good Templars, Cremation Societies, etc., but our 
concern is at present with the three first mentioned. On February 
13, 1896, the following letter was sent to the archbishops of the 
United States, from the Apostolic Delegation at Washington, D. C, 
for the information and guidance of the Ordinaries and clergy of the 
United States: 



Vm. SECRET SOCIETIES 

A convert to the Catholic feith is a knight of Pythias. He was a 
knight for many years before he became a Catholic. He carries a 
few thousand dollars life insurance in the order. As he is a poor 
man, it would be a great hardship for him to quit the order and for- 
feit this insurance. What shall he do about it? 

Answer. — There are two categories of so-called secret societies, 
forbidden to Catholics: (a) societies, like the Masons, that are for- 
bidden under censure, i. e., under pain of excommunication; (b) 
societies, like the Knights of Pythias, that are forbidden under pain 
of sin, but not under censure. 

On October n, 1869, Pope Pius IX issued his famous Bull, 
Apostolicae Sedis, in which among many other censures, reserved 
to the Holy See, is the censure of excommunication pronounced 
against "nomen dantes sectae Masonicae aut Carbonariae aut aliis 
ejusdem generis sectis, quae contra ecclesiam vel legitimas potes- 
tates seu palam seu clandestine machinantur necnon eisdem sectis 
favorem qualemcunque praestantes earumque occultos coryphaeos 
ac duces non denuntiantes, donee non renuntiaverint." 

Two qualifications are required in order that a society or organ- 
ization fall under the bann of excommunication: (a) its members 
must constitute a sect, that is, they must be united very closely 
together by the profession of the same principles, that the society 
as a body professes and advocates; (b) it must war against the 
Church or against the State, even though it exist for other purposes 

also. 

The societies generally understood to possess these two qualifi- 
cations and therefore to be forbidden under pain of excommunication 



are: 



38 



SECRET SOCIETIES 



39 



1. The Masons. Pope Clement XII, in 1738, first excommunicated 
the Masons. Then Benedict XIV, in 1751, reaffirmed the censure, 
as did Leo XII, in 1825, Pius VIII, in 1829, Pius IX, in 1869, in the 
Bull Apostolicae Sedis, just mentioned, and finally Leo XIII, in 
1884, in the Bull "Humanum genus" 

2. The Carbonari, a secret political society organized in Italy, 
in the beginning of the last century, whose purpose was the over- 
throw of the existing government and the establishment of a 
republic. They were excommunicated by Pius VIII and Leo XII. 

3. The Fenians. This society was prohibited under censure of 
excommunication, by the Holy Office, January 12, 1870. 

4. Societies of Anarchists and Nihilists, in Russia especially, but 
wherever they may exist, since their purpose brings them under 
the ban of excommunication. 

No Catholic, therefore, may belong to any of the above named 
societies, without committing mortal sin, and at the same time in- 
curring excommunication, which excommunication is reserved to 

the Holy See. 

In the second category of forbidden societies, namely, of those 
that are forbidden under pain of mortal sin, but without the censure 
of excommunication, are to be placed the three societies, expressly 
mentioned in the official papal documents, that is to say : 

1. Odd Fellows ; 2. Knights of Pythias ; 3. Sons of Temperance. 

There are other societies also forbidden under pain of mortal 
sin, v. g., the Good Templars, Cremation Societies, etc., but our 
concern is at present with the three first mentioned. On February 
13, 1896, the following letter was sent to the archbishops of the 
United States, from the Apostolic Delegation at Washington, D. C, 
for the information and guidance of the Ordinaries and clergy of the 
United States: 



4© 



THE CASUIST.— VOL. II 



Apostolic Delegation, 

United States of America. 

Washington, D. C, Feb. 13, 1896. 
Your Grace: 

Under date of August 13, 1895, I received from the Cardinal 
Prefect of Propaganda instructions regarding the application of the 
well-known decree of the Holy Office condemning the three socie- 
ties, "Odd Fellows," "Knights of Pythias," and "Sons of Tem- 
perance." According to these instructions which I communicated to 
your Grace at the time, the condemnation was to be considered ab- 
solute, and wherever peculiar circumstances seemed to merit special 
consideration in particular cases, the matter was to be referred by 
the Ordinary to Rome. In consequence, many Bishops have, since 
that time, sent cases to the Propaganda which have been referred to 
the Holy Office for consideration. The Supreme Congregation, 
after deliberation on such cases, has, by a decree dated January 18, 
1896, determined on a course which is explained by the words which 
I quote from the decree itself: — 

"Quaesitum fuit an remota quavis alia earundem sectarum partici- 
patione, hoc saltern liceat nomen proprium in sociorum catalogis 
retinere, necnon in praefatae taxae vel aeris alieni solutione stato 
tempore perseverare. 

"Quod dubium sane gravissimum, cum SS. D.N. Sacrae huic 
Supremae Congni commiserit enucleandum, eadem S. Congregatio, 
re mature perpensa respondendum censuit :— Generatim loquendo 
non licere: et ad mentem. Mens est quod ea res tolerari possit 
sequentibus conditionibus et adjunctis simul in casu concurrentibus, 
scilicet : 10. Si bona fide sectae primitus nomen dederint antequam 
sibi innotuisset societatem fuisse damnatam. 20. Si absit scandalum 
vel opportuna removeatur declaratione id a se fieri ne jus ad emolu- 



SECRET SOCIETIES 



41 



menta vel beneficium temporis in aere alieno solvendo amittat; a 
quavis interim sectae communione et a quovis interventu, etiam ma- 
teriali, ut praemittitur, abstiendo. 30. Si grave damnum sibi aut 
familiae in renunciatione obveniat. 40. Tandem ut non adsit vel 
homini illi vel familiae ejus periculum ullum perversionis ex parte 
sectariorum, spectato praecipue casu vel infirmitatis vel mortis: 
neve similiter adsit periculum funeris peragendi a ritibus catholicis 
alieni. 

"Quae cum SSmo Dno N. papae Leoni XIII relata fuerint, in 
totum approbata et confirmata fuerunt. Verum cum de re gravis- 
sima atque periculorum et difficultatum plena agatur, quae plurimas 
non modo dioceses sed et provincias ecclesiasticas respicit, idem 
SSmus Dnus N. jussit ut uniformis regulae servandae causa, casibus 
particularibus Eminentia Tua et in Apostolica Delegatione succes- 
sors providere possint." 

I beg your Grace to communicate the above disposition of the 
Holy See as soon as possible, to your Suffragans and through them 
to the Confessors. With sentiments of highest esteem and fraternal 
charity, I remain, 

For His Eminence, Apostolic Pro-Delegate, 

Most faithfully yours in Xt, 

D. SBARRETTI, Auditor. 



From this decree of the Holy Office, it is evident that members 
of the three societies, or of any one of them, can not be absolved 
unless they absolutely renounce their adherence to the prohibited 
societies. This renunciation must be external, complete and made 
in good faith ; because the aims and purposes of these societies are 
known to be dangerous to religion and to society, although the 
individual members of them may be quite ignorant of this fact. 



4* 



THE CASUIST.— VOL. II 



Since, however, besides their leading aims, which are for the most 
part a matter of secrecy, these societies have for their secondary 
object mutual assistance in temporal things, the question arises 
whether a member, who having joined the association in good faith, 
has given his share toward the accumulation of a benefit fund, a pro- 
portionate part of which was to be returned to him or his family 
with just interest, either as savings or as relief money in case of 
sickness or death — whether such a member must so far renounce 
his connection with the society as to sustain a serious loss. To this, 
the Holy Office answers : As a rule, such financial loss is not a valid 
reason for continuing in the society, since it is impossible for a man 
to remain a nominal member of a society, without either furthering 
its main object, though unwillingly and unconsciously, or else 
giving scandal to those who do not know the true reasons for his 
remaining a nominal member, and who will naturally assume that 
such membership means practical co-operation in the aims and pur- 
poses of the society. 

Nevertheless, there may be cases where there is no scandal given 
by the person continuing a nominal member, and where there exists 
no danger for his faith and where withdrawal would mean serious 
pecuniary loss. In such cases, provided the man joined the society 
in good faith, not knowing that it was forbidden, the pastor or con- 
fessor may make application in order to obtain permission to give 
the man absolution although he allows his name to remain on the 
rolls of the society in order to be entitled to the insurance for which 
he has been paying perhaps for many years. If such be the case, 
the Apostolic Delegate in Washington has been empowered by the 
Holy See, to allow a mere nominal membership to continue, accord- 
ing to his judgment of the case, for the sole purpose of securing for 
the applicant an external title to what really belongs to him, without 



SECRET SOCIETIES 



43 



identifying him with the dangerous or unlawful character of the 
forbidden society. 

In summing up the case before us, we would say that : 

1. Since the man in question became a Knight of Pythias in good 
faith, that is before his conversion to the Catholic Church, 

2. Since he can not now withdraw from the order without serious 
pecuniary loss, being a poor man ; then 

3. If his nominal membership create no special danger for his 
spiritual interests, and 

4. If such membership give no scandal, then application ought to 
be made to the Apostolic Delegate in Washington by the man's con- 
fessor, or through him by the bishop, to obtain permission for the 
gentleman to continue a nominal member of the K. P.'s, in order to be 
able to claim legally the insurance that belongs to him and to his 
family. The confessor has no power or jurisdiction to judge 
whether the conditions that may permit nominal membership are ver- 
ified or not; neither has the ordinary such power. The Apostolic 
Delegate alone is the competent authority to determine whether the 
circumstances of the case call for a special permission or authoriza- 
tion to continue a nominal member of the society. 



THE SEAL OF CONFESSION 



45 



IX. THE SEAL OF CONFESSION 

Titus, a priest, has for some time, been hearing the monthly con- 
fessions of certain boys. Recently the boy J. came to Confession 
and confessed among other things, that he had been "mad at a boy." 
No names are mentioned, but the priest happens to know the boy 
J., who is confessing, and thinks he knows also the one at whom 
J., as he says, is "mad," and whose name is H. After questioning 
to satisfy himself that J. entertains no further ill-will against the 
other boy, the priest absolves and dismisses the penitent. Subse- 
quently he notices that the two boys J. and H. are no longer seen 
together, though they had in the past associated a great deal. Titus, 
in an occasional talk with H., whom he thinks to be the boy re- 
ferred to by J. in Confession, asks H. if he and J. were not on good 
terms, and H. admits they were not. Titus brought up this matter 
in order to bring about a reconciliation between the two boys, one 
of whom, J., had in Confession expressed his consent to be 
reconciled. 

Did Titus act properly in asking this other boy H. about the mat- 
ter ? e. g., if he and J. were on good terms ? Would the two boys 
concerned be likely to think that the priest made use of knowledge 
which he had obtained in the confessional ? 

Answer. There are two decrees of the Holy See extant, regard- 
ing the use of knowledge gained in the confessional. The first is a 
decree of Clement VIII, May 26, 1593, in which superiors of reli- 
gious orders are forbidden to make use of any knowledge gained in 
the confessional, for the external government of the order. DeLugo 
and St. Alphonsus, both maintain that this decree is to be extended 
to all superiors, even though they belong to the secular clergy, in 
relation to all classes of penitents, because the decree does not 

44 



contain merely a particular regulation for some individuals, but it 
promulgates a divine law concerning the seal of Confession. And 
for this reason, they say, that the doctrine of the earlier theologians, 
that knowledge gained from Confession might be made use of, pro- 
vided there was no danger of revealing the sins of the penitent, 
that is, provided others would not suspect anything about the peni- 
tent, must be corrected. The- other decree is a decree of the Holy 
Office, November 18, 1682, by which it is forbidden to make use of 
information gained in the confessional, to the detriment of the peni- 
tent, even though by so doing the penitent might be saved from 
some greater evil or suffering, and especially from some greater sin. 
This decree necessitates the amendment of the principle, held also 
by the earlier theologians, that information gathered in the con- 
fessional might be made use of, provided the penitent could not be 
rationabiliter invitus, that is to say, when the use of such information 
is necessary to reclaim the penitent from sin. 

St. Alphonsus admonishes all confessors to be exceedingly careful 
in the matter of the seal of Confession, since there is always more 
or less danger of either revealing the sins of the penitent or else 
creating hardships for him. We will give a brief synopsis of the 
teaching of the holy Doctor in regard to the seal of Confession. 
He says that it is never allowed to make use of any information 
gained from the Confession of a penitent, if 

1. There be danger of revealing a penitent's sins ; 

2. Thereby a hardship be created for the penitent, or the penitent 
be led thereby to dislike or detest Confession ; 

3. Others suspect that the seal of Confession is being violated, or 
in other words, if others are scandalized. 

1. Even though some greater evil or sin might be obviated for 
the penitent, by the use of information gained from the penitent's 



4 6 



THE CASUIST.— VOL. II 



Confession, it is never allowed to use it. Not even if the penitent 
did not know that the confessor was acting on information gath- 
ered from his Confession. The reason why such knowledge may 
not be used, even when the penitent is quite ignorant that it is 
being used, is that the faithful would be turned away from the 
practice of Confession, if they thought that the confessor might 
use the information gathered from their Confessions. 

Therefore, if the confessor knows from the penitent's Confession, 
that the penitent is making bad Confessions, or is indisposed, he 
may not, for that reason, refuse to hear his Confession. For such 
conduct on the part of the confessor would be a violation of the seal 
and would render Confession odious. 

It is never allowed to question the confessor of children con- 
cerning their conduct, nor is it permitted to consult a confessor re- 
garding young men who are to receive holy orders. The only 
information that a confessor may volunteer under such circum- 
stances is that such penitents frequent the. Sacraments. 

2. It is lawful to use information gathered in the confessional, 
provided such use does not result in hardship to the penitent and 
there be no fear of any revelation. For if there be no fear either of 
revelation or of hardship for the penitent, the Sacrament will not 
be made odious, even though the penitent should notice that some use 
was being made of what he had told in Confession, because tf the 
use being made of knowledge gained in Confession is in no wise 
detrimental or burdensome to the penitent then such use does not 
make Confession more difficult or distasteful. 

Therefore a confessor may make use of what he knows from 
Confession for the reformation of his own life, for the better ful- 
fillment of his office or duties as a confessor, to pray to God for 
his penitents, to treat them with more kindliness, even though the 



THE SEAL OF CONFESSION 



47 



penitent might notice that this was being done because of what he 
told in his Confession ; since the Sacrament is not thus made hateful ; 
the confessor may also use knowledge that he has from Confession, 
to consult works on theology and the spiritual life; to temper his 
dealings with penitents in the confessional; to save himself from 
the pitfalls that his penitents have encountered ; to admonish others, 
etc. In sermons it is allowed to speak in a general way of things, 
that a preacher would not think of unless he heard Confessions, but 
he must have a care not to speak of any particular sins of individual 
penitents. 

3. A confessor may do anything that he ought to do, or would 
have done, even if he had not heard Confessions ; even though it was 
the Confessions that put it into his mind to do it now ; provided he 
take care to admonish the penitent, lest he be scandalized. But it is 
not lawful for a confessor to do anything on account of something 
he hears in Confession, which otherwise he w r ould not have done, if 
from his doing so, a hardship might be created for the penitent, or 
there be fear or danger that something be revealed. The confessor 
is obliged in conscience to wait until some future event or occur- 
rence furnish him an excuse or motive for doing what would other- 
wise not be done. 

In answer to the question now, it is evident from what has been 
said above, that the priest had no right to ask the question which 
he put to H. Even though his purpose was to remove an occasion 
and cause of sin between the two boys, still his knowledge was 
gathered exclusively from the Confession of one of the boys, and its 
use, under the circumstances, would create suspicion that he was 
breaking the seal of Confession, and make Confession distasteful and 
even odious. Even though the priest might have had J.'s permis- 
sion to speak of the matter to the other boy, he would first have to 



4 8 



THE CASUIST.— VOL. II 



explain the circumstance of the permission to H. in order to 
remove any scandal that H. might take by thinking that the priest 
was violating the seal of J.'s Confession, in speaking to him about 
a reconciliation. The priest should have waited until he learned, by 
some means independent of the confessional, that J. and H. were 
estranged, and then, letting the boys know clearly whence he had , 
his knowledge, might have tried to reconcile them. 



X. ANTICIPATING THE OFFICE 

X. has been in the habit of anticipating his office every day at 
two o'clock P. M. He has no special faculty from his Bishop or 
from the Holy See to do this. He finds it extremely convenient, 
however, although there are many days when he could wait a few 
hours longer before anticipating for the next day. 

Was his anticipation of the office at two o'clock on those days 
when he might have waited a few hours longer, valid, and if valid 
was it also lawful ? 

Answer: 

According to the opinion of many approved theologians, and 
which opinion is therefore certainly probable, the office may be an- 
ticipated every day from two o'clock in the afternoon, in all cases 
validly and for a slight reason at least, licitly, without any special 
indult or faculty from the Holy See. Wfe are aware that this is not 
the more generally received opinion of the theologians, either an- 
cient or modern, but still it is supported by theologians of such great 
authority that it can be said to enjoy both internal and external 
probability. 

St. Alphonsus, in the first edition of his Moral Theology, called 
this opinion most probable, probablissima. In the later editions, 
however, of his work, he retracted these words, and expressed his 
belief that the truer opinion was that it was not allowed, without 
a special permission from the Holy See, to anticipate the office at 
two P. M. But Sabetti, Bucceroni, Ballerini-Palmieri, Genicot, 
Noldin, etc., as well as the Salmanticenses, Sanchez, Viva, etc., all 



49 



5° 



THE CASUIST.— VOL. II 



agree in saying that the opinion is solidly probable, that holds that 
a priest may anticipate his office every day at two o'clock in the 
afternoon without any special authorization from the Holy See. 
They reach this conclusion in this way. In the beginning, matins and 
lauds were recited during the night time. Gradually, however, the 
practice grew up of anticipating the next day's office the evening 
before, after sunset. In the course of time this was improved on, 
by reciting matins and lauds when the evening began to fall, that is 
to say, when the sun was half way between the zenith and the 
horizon. Because, when the sun reached this point, the tempus 
vespertinum began. Finally the custom grew of anticipating the 
next day's matins and lauds, from the beginning of the tempus ves- 
pertinum not of the natural day, but of the ecclesiastical day. 
Now, the tempus vespertinum of the ecclesiastical day began at two 
o'clock. That is to say, the evening of the ecclesiastical day began 
when vespers were recited in the choir. Vespers were recited in 
choir when the sun was half way between the zenith and the horizon 
in the^afternoon. Now, however, vespers are recited in choir at two 
o'clock P. M., so that two o'clock P. M. is now the beginning of the 
ecclesiastical evening. As soon, therefore, as vespers have been 
said in the choir, i, e., about two P. M., the next day is, figuratively 
speaking, beginning, and the office of the next day may be begun. 
St. Thomas says: "Quantum ad ecclesiasticum officium incipit 
dies a vesperis ; unde si aliquis post dictas vesperas, et completorium, 
dicat matutinum, jam hoc pertinet ad diem sequentem" (Quodlib. v, 
a. 28). 

In 1876 the Congregation of Rites was asked: "Quanam hora 
liceat incipere privatam recitationem matutini cum laudibus vespere 
diei praecedentis ?" To which the Congregation made reply: "Pri- 
vatam recitationem matutini cum laudibus vespere diei praecedentis 




■ 



OOCB 



4~* 



S 



"' 



■ 



9 



ANTICIPATING THE OFFICE 



5i 



incipi posse quando sol medium cursum tenet inter meridiem et 
occasum." Again, a few years later, the same congregation was 
asked: "An praedicta responsio ita intelligenda sit ut ille non satis- 
faceret obligationi suae, qui matutinum cum laudibus vespere diei 
praecedentis recitasset priusquam sol medium cursum teneret inter 
meridiem et occasum?" To which was answered: "Consulantur 
probati auctores." From these two answers of the Congregation 
of Rites we gather, first, that if the opinion which allows anticipa- 
tion of matins and lauds from two o'clock P. M. were wrong, the 
congregation would have condemned it ; and secondly, since the con- 
gregation refers us to approved authors, and since many of the most 
eminent among these allow a priest to anticipate matins and lauds 
from two o'clock in the afternoon of the preceding day, it follows 
that the Holy See gives countenance, constructively, to the practice 
of anticipating matins and lauds at two o'clock of the preceding 
day, without a special dispensation. 

Therefore, we say, whoever anticipates his office at two o'clock the 
preceding afternoon, does so validly, that is, he is not bound under 
pain of mortal sin to repeat it later, either on that day or on the 
next; and if he have a "tenuis ratio" for so anticipating, he does 
so lawfully. Now, in the case before us, X. has a sufficient reason 
on some 'days for anticipating at two o'clock, but then on other days 
he has no special reason, and could just as well put it off until 
later. However, on such days as he has no special reason for be- 
ginning the next day's office at two o'clock the very convenience 
that it affords him is a sufficient reason. It lends regularity to his 
recitation of the office, and strengthens a very excellent practice, 
and is of itself ample reason for anticipating every day at two 
o'clock P. M. It would be difficult to convince us that not every 
secular priest in this country has sufficient reason to anticipate his 



5* 



THE CASUIST.— VOL. II 



office at two o'clock P. M. every day, without any special dispensa- 
tion or faculty to do so. But when one considers the weight of 
theological authority which justifies one in so doing, he were a very 
scrupulous and unreasonable man, indeed, who would give up so 
laudable a practice for so poor a scruple. 






XI. DISPARITAS CULTUS 

Bertha is married to a man who does not know anything about 
his baptism. Bertha is a Catholic. The man was the son of a non- 
Catholic family, the mother being a Methodist, but the son has ap- 
parently no religion at all. I think therefore that I should pro- 
cure for them a dispensation super impedimento disparitatis cultus. 
Now the man always runs away when I go there, as I have been 
attending his stepdaughter. I would hardly care to look to him for 
a renewal of consent, because he would not know what it was all 
about, and if they did renew their consent I would be uneasy about 
its being a valid consent. It would be hard enough to make the 
wife do the renewing, because she has lived with a man who was 
not her husband, before her present marriage, and is perfectly satis- 
fied that the present marriage is all that it ought to be. I don't 
know whether I ought to get a dispensation in radice, or whether 
to get an ordinary dispensation and take advantage of what Sabetti 
says, viz., that the opinion seems entirely certain that the party 
who is ignorant of the impediment need not renew the consent in 
this one case — that a Catholic marry an unbaptized person. I never 
met this man, but his wife tells me he is a very good man, and once 
I became acquainted with him he would be glad to see me ; but he 
would not understand about the impediment and might think that 
I was unnecessarily interfering in his private concerns. Should 
I get a sanatio in radice, or the ordinary dispensation, and will it 
be sufficient in the second case to have the wife renew her consent? 

Answer. The cause of the difficulty about this marriage is the 
uncertainty of the husband's baptism. If he was never baptized, or 
if ever baptized, then never validly, there seems to have existed at 

53 






I t 



* 



54 



THE CASUIST.— VOL II 



the time of his marriage to a Catholic woman a diriment impedi- 
ment disparitatis cultus, which was not removed by a dispensation, 
since we suppose that they were not married by a priest, and which 
rendered any marriage with a baptized woman invalid. That the 
man, and even the woman, were ignorant at the time of the impedi- 
ment and its effect, did not stay its operation of invalidating the 
marriage. Their marriage consent may have been perfectly valid 
and sufficient — qua consensus — still it could not create a valid mar- 
riage contract, because it was vitiated or rendered inoperative by 
reason of the impediment. 

In the present case the man's consent was valid, because he knew 
nothing of the impediment. It would seem also that the woman 
was ignorant of any diriment impediment, and at the time of the 
marriage gave a valid consent. "In dubio standum est pro valore." 
In case, therefore, that it be fully established that the man was never 
baptized, and it be impossible or extremely difficult to bring about 
a renewal of consent, a sanatio in radice may be procured and ap- 
plied without renewal of consent on either part ; or better still, ap- 
plication should be made to Rome, according to the Holy Office, 
if the parties were married without a dispensation super impedi- 
mento disparitatis cultus, and the baptism of one of the parties was 
in doubt at the time of the marriage, but afterward was proven to 
have been no baptism at all. In this case Rome will advise what 
course ought to be pursued in each instance. If the woman was 
aware, at the time of her marriage, or has become aware since, 
that her marriage was invalid on account of a diriment impedi- 
ment, she must renew her consent, since the consent that she gave 
at her marriage was worthless on account of her knowledge of the 
impediment, or has become worthless since, owing to such knowl- 
edge, and therefore can not be said to endure, so that it might be 



DISPARITAS CULTUS 



55 






healed, since it never existed or has ceased to exist. Therefore it 
must be renewed, i. e., a new consent must be given or there can be 
no valid contract. But all this reasoning has proceeded on the as- 
sumption that there existed from the beginning of this marriage a 
sufficient impediment to have invalidated the marriage. Now is 
such really the case ? Is it certain that this man was never baptized ? 
Is his baptism sufficiently doubtful to create a presumption against 
the validity of his marriage ? No, by no means. It is not certain 
that he was never baptized. He himself does not know anything 
about his baptism, but his mother was a Methodist, and the Meth- 
odists as a religious body baptize validly. This fact alone creates 
a presumption, according to the decisions of the Congregation of 
the Holy Office, in favor of the man's baptism, in ordine ad validi- 
tatetn matrimonii contracti vel contrahendi. 

Only in cases where it is perfectly certain that one of the parties 
to a marriage contract was never validly baptized, can there be ques- 
tion of the impediment disparitatis cultus. In our case there is no 
such certainty. The whole question must, therefore, be solved on 
other lines. There is well founded doubt whether this man was 
ever validly baptized. Upon investigation the doubt remains. It 
can not be said with certainty that he was baptized, and it can not 
be said with certainty that he was not baptized. It is a case of "bap- 
tismus dubius." Now this man, only doubtfully baptized, marries 
a baptized woman, before a magistrate or a non-Catholic minister 
of the Gospel, without any dispensation super impedimento dispari- 
tatis cultus. Is such a marriage invalid, or is it valid, or is its 
validity doubtful. 

"Num validum sit matrimonium, si de baptismo unius partis grave 
dubium oritur ?" The solution of this question is to be found in the 



5<* 



THE CASUIST.— VOL II 



decrees of the Holy Office, v. g., decrees Nov. 17, 1830; July 7, 
1880; Sept 18, 1890, etc,, etc. 

According to these decrees, when the baptism of one of the parties 
to a marriage contract is doubtful, whether the doubt concern the 
fact of the baptism or its validity, "in ordine ad matrimonium turn 
contrahendum turn contractum, ex praesumptione pro valido habe- 
tur." It is only in cases where it is altogether certain that no bap- 
tism was ever conferred, or if conferred, then invalidly, that the im- 
pediment disparitatis cultus, invalidates the marriage. Now if a 
person, regarding whose baptism there exists grave doubt, but whose 
baptism is presumed to have been valid in ordine ad matrimonium, 
is married to a baptized person, without a dispensation, then theo- 
logians consider such a marriage valid, even though, in reality, the 
person thus married was never baptized; they hold that in such 
cases the Church dispenses super impedimento disparitatis cultus. 
If, however, in the same case, when a doubtful baptism has been 
presumed valid, and a marriage is contracted, and afterward it be 
established on incontrovertible evidence that the doubtful baptism, 
thus presumed valid, was in reality no baptism, then recourse must 
be had to the Holy See, which will decide what is to be done in 
each particular case. 

For determining when a baptism may be presumed valid, in ordine 
ad matrimonium, the Holy Office lays down the following rules : 

1. If the person, whose baptism is in doubt, belonged to a sect 
which does not insist, in its ritual, on the essential form and matter 
of baptism, then each case must be examined separately. 

2. If the person belonged to a sect whose ritual does prescribe 
the essentials for a valid baptism, then the baptism of such a per- 
son is presumed to have been valid, and no further investigation is 
necessary. 



DISPARITAS CULTUS 



57 



3. If, upon examination, in either case, the baptism continues 
doubtful, then it is presumed valid, in ordine ad validitatem matri- 



monii. 



A general rule of the Holy See in this matter is: Baptismus 
dubius in ordine ad matrimonium contrahendum, vel jam con- 
tractum, haberi debet ut validus. 

In conclusion, therefore, we say that this Catholic woman's mar- 
riage to this doubtfully baptized man, although entered in|o with- 
out a dispensation, is to be presumed valid in the eyes of the Church 
until it is proven invalid. 



XII. A CASE OF THE IMPEDIMENT OF 

CONSANGUINITY 



Titius and Bertha desire to contract a valid marriage, and to this 
end they consult their parish priest. Now the parish priest is 
aware of a persistent rumor to the effect that Titius and Bertha are 
related to one another "primo gradu lineae collateralis" : in other 
words, that they are brother and sister. He refuses to marry them 
until he shall have first investigated this rumor and discovered 
the ground on which it rests. Upon investigation, he finds that the 
grounds for the suspected relationship are the following: 

i. Public report: all the people of the neighborhood believe that 
Titius and Bertha are brother and sister. 

2. Bertha's mother, in bringing suit against Sempronius for the 
support of Bertha, swore that Bertha was his child, although 
Bertha's mother was not married to Sempronius. 

3. Sempronius, on his death bed, acknowledged that Bertha was 
his child, and desired that it be so entered on the baptismal record. 

Sempronius married Anna, another woman, who bore him Titius. 
who now desires to marry Bertha. After the death of Anna, Titius' 
mother, Sempronius, his father, married Bertha's mother. 

The parish priest, discovering this to be the case, thought that 
the grounds for suspecting that Titius and Bertha might be brother 
and sister were sufficient to justify him forbidding them to marry. 
Accordingly, he refused to marry them, and forbade them, under 
pain of having their marriage annulled, to attempt to get married. 
But this did not deter the young couple from endeavoring to carry 
out their purpose of getting married. The whole case was, there- 
fore, brought before the bishop. Now Bertha's mother appears be- 

58 



A CASE OF THE IMPEDIMENT OF CONSANGUINITY 59 



fore the bishop's court and makes affidavit that Sempronius was 
not Bertha's father: that when she stated that he was, she had 
simply lied, in order to keep Sempronius from marrying another 
woman, and to get support from him for her child. That if Sem- 
pronius declared on his death bed that Bertha was his child, he 
did so at her most urgent prayer in order to remove the stigma 
from her, who was then his lawful wife, and from her daughter : 
but that there was no truth whatever in Sempronius' statement. 

In the meantime, however, Titius and Bertha are living together 
as husband and wife and have children. Bertha's mother is near- 
ing death and desires very much that Titius and Bertha should be 
married validly and licitly in the church before her death. In this 
extremity the whole situation is laid before the Holy See, with the 
prayer that the Holy See would deign to determine authoritatively 
whether there were sufficient ground for suspecting the alleged 
relationship between Titius and Bertha, and therefore forbidding 
their marriage by the Church, or whether the grounds for the sus- 
pected relationship were insufficient in Canon Law, and that Titius 
and Bertha might be married by a priest. 

To this prayer of Titius and Bertha the Congregation of the 
Inquisition, or the Holy Office, on April 6, 1906, returned the fol- 
lowing answer: "After examining all the law and the facts in the 
case, the non-existence of the impediment of blood relationship is 
not sufficiently established, and, therefore, the marriage of the pe- 
titioners can not be allowed." This reply or decision of the Holy 
Office was approved by the Supreme Pontiff. 

There is question here of a doubtful impediment, impedimentum 
dirimens dubium. A doubtful impediment is one whose existence 
or non-existence can not be established by a thorough investigation. 
The impediment may be doubtful, either because the interpretatior 



Xn. A CASE OF THE IMPEDIMENT OF 

CONSANGUINITY 

Titius and Bertha desire to contract a valid marriage, and to this 
end they consult their parish priest. Now the parish priest is 
aware of a persistent rumor to the effect that Titius and Bertha are 
related to one another "primo gradu lineae collateralis" : in other 
words, that they are brother and sister. He refuses to marry them 
until he shall have first investigated this rumor and discovered 
the ground on which it rests. Upon investigation, he finds that the 
grounds for the suspected relationship are the following: 

1. Public report: all the people of the neighborhood believe that 
Titius and Bertha are brother and sister. 

2. Bertha's mother, in bringing suit against Sempronius for the 
support of Bertha, swore that Bertha was his child, although 
Bertha's mother was not married to Sempronius. 

3. Sempronius, on his death bed, acknowledged that Bertha was 
his child, and desired that it be so entered on the baptismal record. 

Sempronius married Anna, another woman, who bore him Titius, 
who now desires to marry Bertha. After the death of Anna, Titius' 
mother, Sempronius, his father, married Bertha's mother. 

The parish priest, discovering this to be the case, thought that 
the grounds for suspecting that Titius and Bertha might be brother 
and sister were sufficient to justify him forbidding them to marry. 
Accordingly, he refused to marry them, and forbade them, under 
pain of having their marriage annulled, to attempt to get married. 
But this did not deter the young couple from endeavoring to carry 
out their purpose of getting married. The whole case was, there- 
fore, brought before the bishop. Now Bertha's mother appears be- 

58 



A CASE OF THE IMPEDIMENT OF CONSANGUINITY 59 

fore the bishop's court and makes affidavit that Sempronius was 
not Bertha's father: that when she stated that he was, she had 
simply lied, in order to keep Sempronius from marrying another 
woman, and to get support from him for her child. That if Sem- 
pronius declared on his death bed that Bertha was his child, he 
did so at her most urgent prayer in order to remove the stigma 
from her, who was then his lawful wife, and from her daughter : 
but that there was no truth whatever in Sempronius' statement. 

In the meantime, however, Titius and Bertha are living together 
as husband and wife and have children. Bertha's mother is near- 
ing death and desires very much that Titius and Bertha should be 
married validly and licitly in the church before her death. In this 
extremity the whole situation is laid before the Holy See, with the 
prayer that the Holy See would deign to determine authoritatively 
whether there were sufficient ground for suspecting the alleged 
relationship between Titius and Bertha, and therefore forbidding 
their marriage by the Church, or whether the grounds for the sus- 
pected relationship were insufficient in Canon Law, and that Titius 
and Bertha might be married by a priest. 

To this prayer of Titius and Bertha the Congregation of the 
Inquisition, or the Holy Office, on April 6, 1906, returned the fol- 
lowing answer: "After examining all the law and the facts in the 
case, the non-existence of the impediment of blood relationship is 
not sufficiently established, and, therefore, the marriage of the pe- 
titioners can not be allowed." This reply or decision of the Holy 
Office was approved by the Supreme Pontiff. 

There is question here of a doubtful impediment, impedimentum 
dirimens dubium. A doubtful impediment is one whose existence 
or non-existence can not be established by a thorough investigation, 
The impediment may be doubtful, either because the interpretatior 






6o 



THE CASUIST— VOL. II 



of the law which creates the impediment, is doubtful and hence it 
becomes doubtful whether any such impediment exists in law. 
This is the dubium juris. Or it may be that the law and its inter- 
pretation are quite clear, and the doubt may be about the facts in a 
particular case, whether the facts are such as to warrant the appli- 
cation of the law or not. This is the dubium facti 

When the doubt concerns the existence of a law creating an im- 
pediment or its interpretation and application and the law be of 
ecclesiastical origin, then it is always lawful to contract a marriage, 
where such a doubtful impediment exists, because the Church sup- 
plies the defect, as Canonists say, and there is no danger of con- 
tracting an invalid marriage. This is the uniform practice in the 
Church, and the Church, cognizant of it, has never condemned it : 
therefore, constructively, the Church sanctions the practice. 
^ But if the doubt concern the existence of a divine law creating an 
impediment, as, for instance, whether the divine law forbids a 
brother and sister to marry, or if the doubt concern the facts in the 
case, as, for instance, whether Titius and Bertha are really brother 
and sister, it is not lawful to contract marriage in such a case, be- 
cause either the Church can not remove the impediment, if it be of 
divme law, or if the doubt concern the facts in the case, the Church 
does not wish to supply the defect, or rather positively refuses to 
supply it. Because the Church has held such marriages invalid, 
when, after they were contracted, it was fully established that an 
impediment did really exist. The reason why the Church does not 
permit marriages in cases where a doubtful diriment impediment 
exists, is that, generally speaking, an investigation will settle the 
doubt as to the existence or non-existence of the impediment. If, in 
any particular case, the investigation does not remove the doubt, 
then a dispensation is required, ad cautelam, because the Church 



A CASE OF THE IMPEDIMENT OF CONSANGUINITY 61 

requires that the Sacraments be administered validly. If, however, 
the impediment be of the kind that the Church never dispenses, as 
in the case of Titius and Bertha, then the Church forbids the mar- 
riage, and does not grant a dispensation ad cautelam. 

Whether the law forbidding a brother and sister to marry be a 
law of nature, or only a law of the Church, theologians are not 
agreed. But in this they are agreed, that if the law be only of 
ecclesiastical origin — juris ecclesiastici — it is one of the impedi- 
ments that the Church never has and never will dispense. For all 
practical purposes, therefore, it is immaterial what may be the 
origin and nature of the impediment. In the case of Titius and 
Bertha the existence of the impediment is not altogether certain; 
but still it is sufficiently probable to render the marriage of Titius 
and Bertha a doubtful marriage, if the Church were to permit them 
to marry. 

In the case of other diriment impediments juris ecclesiastici, the 
Church validates the marriage, by supplying the defect, or remov- 
ing the impediment. But in the case of doubtful relationship in the 
first degree, lineae transversalis, the Church never supplies the de- 
fect, by removing the impediment, if it really exists, even though 
she may, according to some theologians, have power to remove it. 

It can readily be seen what grave inconveniences would some- 
times ensue if the Church followed any other course. Suppose the 
Church allowed Titius and Bertha to marry. It would be very 
scandalous, since all doubt as to their relationship has not been 
removed. Suppose, after their marriage, incontrovertible proof is 
produced that they are brother and sister. They will have to 
separate. The hardship of separating will be greater than the 
hardship of originally abandoning the marriage. Infinitely more 
so. And the scandal given and the harm done to religion ! 







A CASE OF RESTITUTION 



63 



XIII. A CASE OF RESTITUTION 

Titius tells the following incident in confession. About a year 
ago, while a neighbor's house was on fire, he did his best to save as 
much furniture and other articles from the burning house as pos- 
sible. When there was no longer any prospect of saving any more 
property, and the owner of the house was standing near Titius, he 
suddenly bethought him of a considerable sum of money that was 
still in the house, but did not dare go after it. He told Titius about 
it, saying: "Well, it goes with the rest." Thereupon Titius, taking 
a desperate chance, enters the building and secures the money at the 
risk of his life, but never lets on that he succeeded in saving it. 
The house was burned to the ground, and no one ever suspected 
for a moment that Titius has succeeded in saving the money. 
Titius felt no scruple about appropriating the money, as the owner 
had abandoned it as lost, and Titius thought he did him no damage 
in keeping it, because it would surely have been destroyed had 
not Titius saved it. Titius always thought that the money was 
lawfully his until within the last few weeks. Now his conscience 
troubles him, and as the amount was considerable, he desires to 
know what he ought to do in the matter. May he keep it, or must 
he return it? 

Answer: Titius must restore the money to the rightful owner, 
but he may retain enough to indemnify himself for the risk he 
took in saving it and for whatever other damage he may have sus- 
tained. We can easily imagine how Titius was led to form a false 
conscience regarding the money, which permitted him to keep it. 
He said to himself, the owner abandoned all claim or right to 
the money when he said : "Let it go with the rest." And it would 

62 



have gone with the rest, that is, it would have been destroyed and 
lost to the owner had Titius not saved it. The neighbor is not 
any the poorer because Titius kept the money. Whether Titius 
saved it and kept it, or whether it was burned up, in any case it 
was lost to the owner. There is scarcely any doubt that a man 
who has not made a special study of the principles of justice and 
rights, would reason in some such way as above indicated, and thus 
become a possessor bonae fidei. However, we cannot call this 
money a res derelicta. The simple fact that it was in eminent 
danger of being destroyed, does not obliterate the original owner's 
right to it, or make it a res derelicta. Because it was in imminent 
danger of being destroyed and then was rescued from that danger 
does not transfer property rights in it, from its owner to the 
rescuer. Although it was on the point of being destroyed, it is 
still the property of its original owner, until it is destroyed or 
abandoned, and as such "res clamat domino." Eminent danger to 
property does not destroy the owner's right to the property, so that 
it becomes a res derelicta. Nor does the salvage of property that 
would otherwise be destroyed transfer the ownership of the prop- 
erty to the one who saves it. It is only when the owner does actu- 
ally abandon his property and renounces all intention of claim- 
ing it any more than it becomes a res derelicta, and consequently 
prirni possedentis. In the present case it can not be assumed that 
the original and rightful owner of a large sum of money renounced 
all claim to it as soon as he realized that it was going to be destroyed, 
or would willingly consider it as belonging to anyone else but him- 
self in case it were rescued from the fire by human agency or 
through some chance of good fortune. Nor could the owner of the 
money be held guilty of acting unreasonably, in thus continuing 
to claim his property, even though he could not have saved it him- 



64 



THE CASUIST—VOL. II 



self and had given it up as lost. It is still his money. The 
danger it was in has not destroyed his title to it, nor has the 
rescue of it created a new title of ownership in the rescuer. 
Therefore the money must be restored. When Titius fully real- 
izes this obligation of restitution he will commit a mortal sin if he 

does not fulfil it within a reasonable time, if he is able to do so. 

/ 

But he is not bound to restore all the money. He may retain a 
part of it to indemnify himself for the risk he took in saving it. This 
is quite reasonable and in harmony with the principles of justice. It 
is not so easy to determine the exact amount of indemnity that Titius 
is entitled to. In many countries of Europe, the amount is determined 
by statute and is generally ten per cent, of the whole amount found 
or saved. Ten per cent., therefore, we would say, let Titius retain 
as a reward for the risk he took in saving the money. It were 
very much to be desired that we had some such law, determining 
the reward for finding or saving property in the United States. 
We would even agree that Titius keep more than ten per cent, if 
he conscientiously thinks that ten per cent, does not represent the 
risk he took. Moreover, if Titius sustained any damage to his 
health or his clothing by saving this money, he is entitled to a reason- 
able indemnity for that also. 

Only in the case of food or drink do the moralists make an ex- 
ception to this general rule of restitution. "Si fur rem in certo 
periculo remanentem consumpserit eodem loco et intra idem tempus 
quo praeviderit rem apud dominum aeque perituram," he is not 
bound to make any restitution. The reason is that an article has 
no value for the owner as long as it is not removed from the 
danger of destruction. If the food or drink be removed to a 
place of safety before being consumed, then of course they recover 
their value and must be restored, quia res clamat domino. 



XIV. A WILL CASE 



A man died recently and left a will, disposing of a small estate. 
The bulk of the estate was left to his children, but a bequest of one 
thousand dollars was left to a certain charity. The will was offered 
for probate, but was declared void by the court, because it was not 
drawn according to the requirements of the law, and the man was 
adjudged to have died intestate and his estate was ordered dis- 
tributed according to law, as if he had died without making a will. 
The decree of the court, of course, canceled the thousand dollar 
bequest to the charity. Are the children, nevertheless, bound in 
conscience to comply with the known will of their father and donate 
one thousand dollars to the said charity? Or may they accept the 
decision of the court as discharging their conscience from any fur- 
ther obligation to pay this thousand dollars? These people are in 
poor circumstances, but they are conscientious Catholics, and desire 
to know what their strict duty is in this matter. 

Answer. — This case comes under the general question of how far 
the civil law binds or discharges a man's conscience in the matter 
of justice. There can be no doubt that the laws of the state may 
and do bind in conscience, independently of the fact whether the 
thing it commands or forbids is already commanded or prohibited 
by the divine or natural law. Laws made by competent authority for 
the common welfare are binding in conscience. 

This is true of the state as well as of the Church. The state is 
a competent legislative authority in civil affairs. If its laws did 
not bind in conscience, the citizens would be always at liberty to 
transgress its laws, made for the common good, whenever their 
transgression did not involve a transgression of the divine or 

6 S 



66 



THE CASUIST— VOL. II 



natural law, and thus defeat the common welfare and circumvent 
the ends of civil society. Especially is this true of state laws con- 
cerning property rights. The civil law, creating or transferring 
or extinguishing property rights, aims at promoting the common 
welfare, and nothing affects the security of the citizens or the perma- 
nence of the state more than laws regarding property. For the 
order and security of a community it becomes necessary at times 
for the civil law to create or extinguish or transfer claims and titles 
to property. 

If the civil law, in accomplishment of this, might not bind the 
citizen's conscience, its purpose would be largely, if not wholly, 
frustrated. Just as the Church, for the promotion of the common 
good in religious matters, may make laws that bind in conscience, 
since the Church is a competent legislative authority in religion, 
so may the state, being a competent legislative authority in civil 
matters, make laws, that bind in conscience, for the promotion of 
the political and social welfare of the citizens. 

Now the common weal demands sometimes that certain juridical 
acts be declared void of any legal value whatever, because they 
work harm to society, and if the purpose of the laws can not be se- 
cured unless they place a burden on the conscience, then, since 
the common welfare demands that they be enforced, they become 
binding in conscience. Thus a husband is not permitted by law 
to deprive his wife of her legal share of his property. If he makes 
a will or a conveyance of property, thus injuring her, the law nulli- 
fies or voids his act, as being inimical to the best interests of the 
community. 

Now, if the voiding of the husband's act did not hold in con- 
science, the wife would not be allowed to vindicate her rights, and 
the law of dower would become inoperative, to the great detriment 



A WILL CASE 



67 



of society. There is no doubt, therefore, that the civil law may 
wholly annul and make void, not only for courts of law, but for 
the court of conscience also, juridical acts of citizens, such as the 
conveying of property, for instance, if the common welfare de- 
mands it. In any particular case the intention of the lawmaker or 
legislature must be examined as to the value or force of formali- 
ties required by the law. 

It is generally admitted, however, by the moralists that laws of 
the state voiding certain acts and performances of private citizens 
only void them civilly, or as far as the civil courts are concerned, 
unless it can be shown that it was within the contemplation of the 
law to void the act even in the court of conscience. State laws that 
transfer or extinguish property rights demand a strict and narrow 
interpretation, because being in restraint of the citizen's liberty 
they are aliquid odiosum, and, therefore, strictae interpretationis. 
Moreover, an act or a contract that is, by its nature, valid, must not 
be judged invalidated by the civil law, unless it is clearly the pur- 
pose of the civil law thus to invalidate it. But when a court does 
declare certain acts and performances of individuals null and void, 
then such acts and performances are void also in conscience, 
because otherwise the declaration of the court would be vain and 
idle, and public order and security would be put in jeopardy. 

When contracts, therefore, as for instance last wills and testa- 
ments, are declared null and void by the civil law unless certain 
legal formalities are complied with, it is a probable opinion among 
theologians, and therefore a safe opinion to follow in practise, 
that the purpose of the law is to void such last wills and testaments 
only as far as the civil courts are concerned. Therefore, the heirs 
to an estate are not bound either in law or in conscience to observe 
the provisions of a will that has been declared void by the court; 



68 



THE CASUIST— VOL. II 



and they may demand legally the return of any property that was 
conveyed under the will, because by so doing they are only enforc- 
ing their rights that they enjoy under the law. But on the other 
hand a beneficiary under a will that has been declared void by the 
law need not return the bequest until the court has declared the 
bequest to have been null and void and ordered him to return it. 

In the case before us, therefore, the children of this man, whose 
will was thrown out by the court of probate, are not bound in con- 
science to give the thousand dollars to the charity designated by 
their father, because they may avail themselves of a law that is 
just and sound in principle, and made for the protection of society, 
but whose value would be destroyed if it did not bind in conscience. 
If, however, any part of the bequest had been already paid over 
to the charity, the charity could in conscience retain it until com- 
pelled by a decree of the court to return it. 



V 



XV. LIABILITY FOR DAMAGE DONE BY ONE'S 

ANIMAL 

Is a person answerable in conscience, or in foro inferno, for 
damage done by his animal? The case is this: A. had a dog 
that repeatedly chased and killed chickens belonging to B. B. had 
complained to A. about his dog, but, as it seemed, to very little 
purpose, because the dog continued to injure and destroy B/s 
property. Finally B. killed the dog. Now, the dog was a valuable 
animal, worth many times more than the chickens, and A. is at 
present endeavoring to recover damages in the courts. Is A. jus- 
tified in bringing suit to recover the value of the dog, or was B. 
justified in killing it? Which one of them ought to stand the loss of 
the chickens? 

'Answer. — In answering the foregoing questions, the confessor 
proceeds in quite a different way from the judge of a court of law, 
because, there is a very material difference between the forum 
internum and the forum externum, i. e., between the court of 
conscience and the civil law court. The decision in a case given by 
the confessor will often differ very materially from the decision 
given by a judge in a court of law. In the forum internum, or 
court of conscience, in a case like this one, it is the culpa theologica 
that counts; in the civil courts, it is the culpa juridica, or the 
omission of the care which the law requires in the use of property 
so as not to injure others. When the confessor estimates a man's 
responsibility for injury done by the man's animal, his first concern 
is to ascertain whether the damage done by the animal is imputable 
to its owner as a sin, that is a culpa theologica. If the damage 
done was the result of carelessness, then was the carelessness sinful? 

69 



7o 



THE CASUIST— VOL. II 



If there was no sin, then as far as the court of conscience, the forum 
internum, is concerned, there is no restitution to be made. The civil 
court, on the contrary, is concerned about the culpa juridica, that is 
to say, the civil judge is not concerned about the sinfulness of the 
accused's action of omission, but only about the fact of the omission 
of that care which the law requires of citizens in the use of their 
property so as not to injure others in person or property. Whether 
the omission of the proper care was sinful or not, is no concern of the 
civil court. The court endeavors to ascertain the culpa juridica, that 
is, in the present case, whether A. failed to take the care that the 
law demands that he take in the use of his property so as not to 
injure others. Whether A. committed a sin in failing to confine 
his dog is of no consequence in the civil court, provided it can be 
shown that he failed in the care required by the law. It is the only 
thing of consequence' in the forum externum. A.'s carelessness in 
keeping and using his dog may have been wholly without sin; in 
fact there may have been no real carelessness at all, but only 
what is called constructive carelessness, nevertheless the court will 
hold him liable. The general rule of the law is that a person shall 
so use his property as not to injure another in person or property. 
Where a person uses his property so as to injure others, even though 
he be not guilty of any sin or criminal carelessness in such use, still 
if he fails to take the amount of care that the law says he must take, 
then he is guilty of constructive carelessness, and is liable. It is 
irrelevant that he did not intend to do the injury, that he did not 
actually foresee it, and was not guilty of sinful or criminal negli- 
gence in not foreseeing it; the fact remains that the injury was 
inflicted because the amount of care that the law ordains that people 
must and shall take in the use of their property, was not taken, 
and therefore A. is liable. 



) 



LIABILITY FOR DAMAGE DONE BY ONE'S ANIMAL 



7i 



If a case like the present one, therefore, is being tried in foro 
interno by the confessor, and no sin attaches to A/s neglect to con- 
fine his dog, then no reparation can be required of A. in foro 
conscientiae, ante setentiam judicis; whilst, if this same case is 
argued in the civil court, the fact that injury resulted from the use 
which A. made of his dog will be prima facie evidence that A. did 
not employ such care as the law directs, and the court will so find, 
until proven otherwise. 

This rule of the law, although it may work a hardship in some 
particular instance, is just and wise and reasonable, as regards 
the whole community, because it compels persons owning prop- 
erty to use it in a reasonable and just manner so as not to injure 
others, and were it not for this disposition of the law, a great deal 
of injury would be done to life and property through carelessness 
and neglect, and the social order would be very considerably dis- 
turbed. Reparation imposed by the law for injury done to others in 
the use of one's property, is just and reasonable and must be made. 

According to the statute law, a dog is a tame animal and therefore 
the owner must know of his vicious habits to be held liable for 
damages done by him. But where the dog was upon the premises 
of another and did injury, the owner was held liable by the court, 
although without knowledge of the dog's bad habits. In case a 
dog kills or wounds sheep or lambs, the statute law makes the owner 
of the dog liable for the value of the sheep killed or wounded by the 
dog, whether the owner knew of its vicious habits or not, even 
though the sheep be at the time trespassing. This refers of course 
only to the killing of sheep or lambs. The dog's propensity to chase 
and kill such animals is so universally well known, that the law 
supposes every owner of a dog to have knowledge of it and holds 
him liable for any injury resulting therefrom. In cases where other 



72 



THE CASUIST-VOL. II 



property is injured by a dog, knowledge of the dog's vicious habit 
must be proven against its owner, before he can be held liable. 
The liability of the owner or keeper of any animal for an injury 
committed by it is founded upon negligence. Any person is justified 
by the law in killing another's dog, where the dog is dangerous or 
ugly, and his owner knew it, and the dog is found running at large 
or has been bitten by a mad dog; when it attacks one's domestic 
animals on his land, or when it attacks persons or in any way 
becomes a nuisance; when in the act of chasing, worrying or 
wounding sheep, unless such chasing, etc., be done by the direction 
or permission of the owner of the sheep, or by his servant. But no 
one has a right to shoot a dog because he has been trespassing on his 
land, although he may have put up a sign or notice on his land 
that he would do so. 

The confessor, therefore, if we may be allowed to repeat, dis- 
tinguishes between a culpa theologica and a culpa juridica. Culpa 
theologica is a real sin, either mortal or venial ; culpa juridica is the 
omission of the care which the law requires of persons in the use 
of their property so as not to injure others, whether tbe omission 
be sinful or not. Very often such omission will be sinful : then it 
becomes theologica; but it will also often happen where it is not 
sinful : then the theologians call it culpa mere juridica. The principle 
insisted on in moral theology is this : "Ut actio damnificans inducat 
obligationem restitutionis, requiritur ut sit theologice culpabilis; 
nemo enim obligatur in conscientia ad reparandum damnum, nisi 
illatum fuerit in conscientia." No one can be held liable for the 
results of involuntary actions. Now only voluntary actions can be 
sinful. If an action is not sinful, although injurious, then it is not 
voluntary qua injurious, and one can not be held answerable for the 
injury. The injury done may be voluntaria in se or else voluntaria 









LIABILITY FOR DAMAGE DONE BY ONE'S ANIMAL 73 

in causa, or altogether involuntary. A person may intend the injury 
resulting from his action of omission or he may not intend it, but still 
foresee it as necessarily resulting from his action or omission, which 
action or omission is done for some other purpose and not to cause 
injury. In this latter case, if the injury is foreseen and no sufficient 
cause is present to justify its being allowed to happen, it is im- 
putable as sin. 

Now let us apply all this to the present case. It may be said, then, 
that it is lawful to kill another's dog if he is injuring one's property, 
but only on certain conditions. These conditions are: (1) Killing 
the dog must be the only way open to us to stop the injury. If the 
injury may be prevented by notifying the owner of the dog, etc., then 
in conscience it is not lawful to kill it; (2) the injury done by the 
dog must be a grave damnum; (3) the primary purpose of the 
killing must be the protection of one's property, and not the injury 
done to another. These conditions are required in foro interno; for 
the forum externum all that is required is proof that the care 
required by the law was or was not taken in using one's property. 

The confessor must determine whether A. was guilty of sinful 
negligence in the keeping and using of his dog. According to the 
statute law he is liable for carelessness and may be compelled to 
repair the injury resulting from such carelessness. The dog in 
killing B.'s chickens becomes a nuisance, and may be killed and 
damages recovered from A. 

But before the matter is brought into court, what is A.'s duty? 
It will depend on the nature of A.'s carelessness in keeping 
his dog. If A. was guilty of sin in being careless, then he is 
responsible in conscience for the injury done by his dog. A. 
had been notified of his dog's Vicious habits and should have so 
guarded that he could not injure another's property. In neglect- 



74 



THE CASUIST— VOL. II 



ing to do so, he evidently failed in his duty and committed a sin, 
and must now make reparation. 

As B. complained to A. about his animal to no purpose, and if an 
appeal to the officers of the law would have done no good, then if 
the injury that was being done by the dog was a grave damnum, 
B. was justified in conscience in killing the dog to protect his 
property. Vim vi repellere licet is an axiom of the law. Of course, 
if there had been any other less injurious way or means of pre- 
venting the injury to A.'s property, B. would have been obliged in 
conscience to adopt it. But under the circumstances there does 
not seen to have been any other way of stopping the damage. B. 
has a right to insist that A. shall so use his property as not to injure 
him, and he has a right to recover damages for the injury done. 

He has a right also to resist the suit brought by A. to recover the 
value of his dog. At the same time, if the court should fine him 
for killing the dog, he will be obliged in conscience to pay, because 
the court is a competent authority to determine the question of 
the justifiability of the killing of A.'s dog. 

In regard to A., he is bound in conscience to make restitution for 
the injury done by his animal, because he was evidently guilty of 
criminal negligence in the way he kept his dog. But if as a matter of 
iqwtt there was no sin in his carelessness, then, ante sententiam 
juaicis, he is not bound to make restitution. 






XVI. SECRET COMPENSATION 

A man working for a railroad company compensated himself 
secretly to the amount of about one hundred dollars. He did so 
at the suggestion of fellow-workmen, who convinced him that he 
was doing more work than his weekly salary paid for. Prior to 
being advanced to his present position, this man knew the nature 
of the work that would be required of him, and the long hours 
necessary to do the work. This happened several years ago. Now, 
for some months back, this man has been trying to get an increase 
of wages from the company. The matter has been taken under 
advisement by his superiors before whom such matters come for 
consideration, and they seem to have practically admitted that he 
is entitled to an increase of ten dollars per month. However, they 
have been procrastinating now for five months, and are not likely 
to give the increase until spring, because, this man says, they 
know that the winter is a bad time for a man to quit work, that 
a man can not well better himself at this time, and therefore he 
will not give up his present employment. Now, suppose that the 
time runs on long enough before they increase his wages, and the 
total amount to which he thinks himself entitled amounts to one 
hundred dollars, would this man be justified in not restoring the 
hundred dollars already taken? 

Answer. — According to the moralists very definite conditions 
must be verified before occult compensation or secretly recovering 
what one believes to be one's own, can be considered lawful in 
conscience. 

i. Ut debitum sit verum. Our claim must be founded in strict 
justice, and not merely in gratitude for work well done, or in 
promises to remember us in one's will, etc. 



75 



7 6 



THE CASUIST— VOL. II 



SECRET COMPENSATION 



77 



2. Ut debitutn sit certum. If there be any reasonable doubt what- 
ever that we have no strict claim in justice, then possession is nine- 
tenths of the law, i. e., the party from whom we endeavor to 
recover is in possession, and law and equity favor him, and he has 
a right to keep what he has in his possession until it shall be 
proven beyond reasonable doubt that it belongs to another. If this 
were not so, hallucinations would prove a prolific mother of thefts. 

3. Ut debitutn aliter obtineri non possit. The public peace and 
the welfare of the social structure require that debts be collected 
through the channels created by custom and law, and only when 
these are inadequate can recourse be had to secret recovery. 

4. Ut damnum debit oris vel tertii caveatur. We may injure the 
debtor in secretly recovering from him if we expose him to the 
danger of paying the debt twice, or leave his conscience charged 
with the debt, when in fact the debt is discharged. A third person 
may be injured by being suspected of dishonesty, etc., and thereby 
suffer loss of position or legal prosecution. 

In regard to employees the moralists say : Ultra solarium, de quo 
pactum sit, modo saltern inHmum sit, non licet se compensare; nam 
ultra pactum, in quod ipse consensit, nil ei debetur. 

Where no fraud or deception or force has been employed, and 
the nature of the work was sufficiently understood, and the em- 
ployee was not driven by stern necessity to agree to work for a 
wage that is manifestly unjust, there can be no room for secret 
compensation. If, in the course of his employment, the work 
required of him should suddenly become more dangerous than 
could have been foreseen, or much more arduous, as, for instance, 
night work instead of day work, and the man could not very well 
get another position immediately, then he might recover secretly. 
'Applying these conditions to the case before us, we are forced to 



admit that the hundred dollars that this railroad employee took 
was not a debitum verum, nor a debitum certum, and that this em- 
ployee had no strict right, founded in justice, and beyond all rea- 
sonable doubt, to the said money. The pay that he was receiving 
from the railroad company was evidently not infra minimum, and 
if it were, he was not obliged by extreme necessity to work for it, 
since he could have found other work to do, and since he knew 
beforehand the nature of the work that was required of him and 
the wages he was to receive for it. He agreed to do the work for 
the wage of his own free will and not being constrained, and with 
full knowledge both of the labor demanded of him and the recom- 
pense promised. That was a contractus onerosus, entered into 
without fraud or deception or force, and the employee had no right 
therefore to alter its terms, without the consent of the other party 
to the contract. The hundred dollars must be restored to the rail- 
road company. It is evidently their property and res clamat 
domino. This we say in view of the first part of the case. But 
what of the second part? Before coming to the second part of the 
case we will call attention to a condition, in connection with this 
first part of this case, existing in almost every large city of the 
United States, viz.: the dishonesty of street railway employees. 
There are 3050 conductors employed on the New York City railway 
lines. In the year 1904, 349 1 were discharged, of whom 3436 
were in the service less than a year. In 1905, 3019 conductors 
were discharged, of whom 2864 had been less than one year in the 
service. In 1906, 4976 conductors were discharged, of whom 4776 
had been less than a year in the service. In the first six months 
of 1907, 3265 have been discharged, of whom 3144 were in the 
service less than one year. 



73 THE CASUIST—VOL. II. 

The tremendous extent to which these discharges have been for 
dishonesty or stealing is indicated by the following figures: 

Year Total discharges For dishonesty 

J 904 3491 3017 

1905 3019 2448 

J 9o6 , 4976 3924 

1907 (six months) . . . .,. . .3265 2792 

1907 (estimated) 6530 5584 

In the present year, therefore, if the average for the first six 
months is carried out, the entire force of conductors on the surface 
lines will be discharged virtually twice over for dishonesty alone. 
This means a loss to the surface railway company of New York 
City, inclusive of fares not collected, of more than ten per cent, of 
its gross income, or upward of two million dollars a year. Various 
statements of what this system of self-compensation was worth to 
individual men have been made up, but only as estimates. One 
man high up in the councils of the surface railway company said 
the other day that a former valet who was put in on the road as a 
motorman found that his share of the daily profit was from $2.00 
to $3.00 under normal conditions. Several months ago there was 
a case in the divorce courts in New York City in which the wife 
of a city railway conductor was suing for alimony, and in her bill 
charged that although her husband's salary from the railway com- 
pany was only $18.00 a week, he ought to pay alimony on a $50.00 
a week basis, as he "knocked down" $35.00 a week on the side. 
There was a disposition to believe at first that this was an ex- 
aggeration, but subsequent investigations bore out the facts. The 
ordinary reason advanced to justify this dishonesty is that the 



SECRET COMPENSATION 



79 



men are not being paid sufficient wages and therefore are obliged 
to recover secretly. On the other hand, it has been asserted in the 
investigation of traffic conditions by the Public Service Commission 
that the deficit of the New York City railway system in the fiscal 
year ending June 30, 1907, was over $3,000,000. In other words, 
although the gross receipts for the year 1906 were $21,937,943, 
there was a deficit of $2,212,997, two millions of which was caused 
by dishonest employees. So easy is it for men to persuade them- 
selves that they have a right to recover by secret compensation! 
(Cf. New York Times, November 17, 1907.) How earnest, there- 
fore, ought not the confessor to be, especially before the fact, in 
disabusing men of this false conscience. 

In regard to the second part of the railway employee's case, 
namely, would it be permitted to this man to keep this hundred 
dollars, or any portion of it, amounting to $10.00 per month, for 
the time that the railway company acknowledged that his pay 
ought to be increased $10.00 per month, but nevertheless failed to 
increase it? 

If the railroad company has really acknowledged that the work 
of this employee is worth $10.00 per month more than he is re- 
ceiving in wages for it, and if the true reason why the company 
does not increase his pay at present, is because they feel that he is 
obliged to work for them anyway, then they are taking advantage 
of his need to defraud him of what they freely confess in justice 
belongs to him and which they unjustly keep back from him, and 
therefore he might be permitted to deduct from the sum he owes 
the railroad company the sum of $10.00 for every month that the 
company fails to increase his pay since the time that they acknowl- 
edged that his wages ought to be increased to that extent. If 
the company's delay covers more than ten months, we would not 






8o 



THE CASUIST— VOL. II 



permit the man to resume recovering secretly, but we would advise 
him to change his employer if he thought he could not work for 
the wages he contracted for. If, however, the reason why the 
railroad company did not at this time wish to increase his pay, 
was because they could not very well afford to do so economically, 
owing to the stringency of the money market for the last four or 
five months, then we do not think that this employee would be 
allowed to reimburse himself from the money he owes the com- 
pany. In this case the company would not be taking undue ad- 
vantage of this employee's need, but would be simply refusing to 
pay more wages for a certain kind of work than they could afford 
to pay and which they could get other men to do just as well for 
the present wage, which is, we suppose, not infra minimum justunu 



J 









XVII. EXTREME UNCTION 

A priest is called to a sick person, living a considerable distance 
from the church. The road is very heavy and the night very cold 
and stormy. When he finally arrives at the sick man's house he 
finds the sick man unconscious. He gives him conditional absolution, 
and then proceeds to anoint him, as he cannot receive Viaticum. 
But upon opening the oil stocks he discovers that instead of the 
oleum infirmorum, he has brought with him the other two oils! 
What shall he do? It will require several hours to send to the 
church for the oil of the sick. The man may be dead before that. 
The priest quickly dispatches a messenger for the oleum infirmorum, 
and in the mean time gives the sick man Extreme Unction with 
the oil of catechumens. When the messenger returned with the 
oil of the sick, the priest repeated the Sacrament sub conditione, 
and the man expired without regaining consciousness. Was the 
Sacrament valid with the oleum catechumenorum, or was the second 
administration sub conditione necessary or even lawful ? 

Answer. — The Council of Trent defines the matter of the Sacra- 
ment of Extreme Unction to be : "Oleum ab episcopo benedictum' 9 
The exact words of the council are : "Ex apostolica autem traditione, 
per manus accepta, intellexit Ecclesia materiam esse oleum ab 
episcopo benedictum" (Sess. 14). 

The oil, blessed by the bishop, is understood to be oil of olives; 
for the word used simply and without qualification has this mean- 
ing and this has been the uniform teaching and practise of the 
Church throughout the centuries. "Quia oleum principaliter nom- 
inatur olivae liquor," says St. Thomas, "cum alii liquores solum ex 
similitudine ad ipsum olei nomen accipiant, ideo oleum olivae etiam 
debet esse, quod assumitur in materia hujus sacramenti" (Suppl. 

81 



82 



THE CASUIST— VOL. II 



q. 29). Pope Eugenius IV, decre. pro Armenis, says: "Quintum 
sacramentum est extrema unctio, cujus materia est oleum olivae 
per episcopum benedictum." 

"Oleum olivae idque benedictum ad unctionem extremam adhi- 
bendum esse, retinent Orientales, nisi Armenos forsan excipias, 
qui aliquando butyrum loco olei usurpasse videntur" (Denzinger, 
I, 185). Oil of olives therefore is required for the valid adminis- 
tration of the Sacrament of Extreme Unction. It is further required 
for the validity of the Sacrament that this oiPof olives be blessed 
by the bishop. The words of the Council of Trent are clear: 
"Intellexit Ecclesia materia esse oleum ab episcopo benedictum" 
(Sess. 14). The proposition or statement that Extreme Unction 
might be validly administered with oil that had not been previously 
blessed by the bishop, was condemned by Paul V (Jan. 13, 1655), 
as a "propositio temeraria et errori proximo,," and this condemnation 
was reaffirmed by Gregory XVI, in 1842, who declared that even 
in extremest necessity a priest could not validly anoint the sick 
with the oil blessed by himself, unless authorized to bless it by the 
Supreme Pontiff. As far back as the Council of Carthage, A. D. 390, 
it was forbidden to a presbyter to bless the oil of the sick (ap. 
Gratian, c. xxvi, q. vi, c.l.). 

The Council of Hispalis (Seville), A. D. 619, also reserves the 
consecration of the sick man's oil to the bishop. In the Greek rite 
the oil is blessed by simple priests ; and there can be no doubt that 
this benediction suffices. Even in the Latin rite, the benediction 
of the oil by a simple priest is sufficient, provided the priest be 
expressly or tacitly commissioned by the Pope to bless it. "Res 
videtur exploratissima, quam nemini liceat in questionem adducere" 
are the words of Benedict XIV (de synod, dioec. 1. 8, c. 4 ). The 
Roman rule and the Western rule that now follows it, require that 






EXTREME UNCTION 



83 



the oil be consecrated by the bishop, and this is required not merely 
by precept but for the validity of the Sacrament (St. Lig. n. 709). 

The oil, therefore, required for the Sacrament of Extreme 
Unction must necessarily be (1) oil of olives; (2) blessed by a 
bishop. 

Now there arises the question, and it is on this that the present 
case hinges, must the olive oil, blessed by the bishop, be blessed 
especially for this Sacrament in order to be valid, or will oil, blessed 
by the bishop for any purpose and with any form of consecration, 
suffice ? 

Upon this question the theologians do not agree. Some main- 
tain that a special blessing is required for the oil of the sick, 
that it must be blessed for this special purpose, namely for the 
annealing of the sick. Others maintain that any blessing or con- 
secration by a bishop is all that is necessary to make the oil valid 
although perhaps illicit for Extreme Unction. 

Suarez maintains that oil blessed in any way by the bishop is 
sufficient for the validity of the Sacrament, because it is still true 
to say that it is "oleum ab episcopo benedictum" (Disp. 40, g 1, n. 
9). These theologians maintain that oleum ab episcopo benedictum 
is what the Council of Trent declares to be the materia valida of 
Extreme Unction, and if the council meant by oleum ab episcopo 
benedictum the special oil of the sick, i. e., oleum infirmorum, the 
council would have so specified. 

St. Alphonsus calls this opinion probable, and in fact, both by 
reason of the external authority of the theologians that favor it, 
as well as the internal evidence on which it rests, it may be said 
to be solidly probable. 

According to this opinion, in a case of necessity, the oleum 
catechumenorum or the £ Chrisma might be used validly for the 



8 4 



THE CASUIST— VOL. II 



EXTREME UNCTION 



85 






administration of Extreme Unction instead of the oleum infirmorum, 
because both of them are olive oil blessed by the bishop. 

But by far the greater number of theologians are against this 
opinion, and maintain that the oleum infirmorum is the only valid 
matter for the Sacrament of Extreme Unction. The oil used for 
the Sacrament of Extreme Unction, they say, must be blessed by 
the bishop for this special purpose. No other oil, even though 
blessed by the bishop, will suffice. According to them, it is useless 
to give even conditional Extreme Unction with the oil of catech- 
umens, for that is not blessed for the special purpose of annealing 
the sick. To vindicate their position, these theologians appeal to 
the general practise of the Church and to the decisions of the Roman 
Congregations, which declare that there is a strict duty to repeat 
the Sacrament of Extreme Unction, if by chance or accident it has 
been administered with any other than the oleum infirmorum. This 
opinion, also, in the view of St. Alphonsus, is probable. 

In view therefore of this diversity of opinion among the theologians 
regarding the necessity of using only the oil of the sick in the ad- 
minstration of the Sacrament of Extreme Unction, we are obliged 
to agree that any other oil, even though blessed by the bishop, as 
for instance, oleum catechumenorum or S. Chrisma, is materia 
dubia for Extreme Unction and may never be used except in a case 
of grave necessity. For in the administration of the Sacraments 
it is not allowed to follow probable opinions. Pope Innocent XI 
condemned the proposition: "Non est illicitum in Sacramentis con- 
ferendis sequi opinionem probabilem de valore sacramenti, relicta 
tutiore." Hence, in case of necessity, but not otherwise, Extreme 
Unction might be adminstered conditionally with Chrism or oil of 
catechumens. If, however, the oleum infirmorum can afterward 
be had, the Sacrament should be again conferred. St. Alphonsus 



does not make mention of a condition in repeating the Extreme 
Unction, neither does St. Charles, in ordering a repetition in case 
of mistake as to the oil, even though the oil used had been the Chrism 
or oil of catechumens. Lacroix, however, says that the Sacrament 
should be repeated in this case sub conditione (1. VI, pars ii), and 
all recent theologians are of the same opinion (cf. Lehmkuhl II, 

57o). 
In the case before us, there was a grave obligation for the priest 

to repeat the Extreme Unction with the oleum infirmorum, sub con- 
ditione. The priest did right in giving Extreme Unction with the 
oil of catechumens, because it was a case of necessity. 

The sick man had indeed been absolved conditionally, but such 
an absolution must remain dubia, since no external sign of a con- 
fession had been made and absolution without some kind of a con- 
fession of sin, the theologians say, is dubia. But as regards Extreme 
Unction, no confession of sin is necessary, only let there be im- 
perfect contrition for sin in the heart if it be impossible to make 
a confession, then Extreme Unction gives primam gratiam, or sancti- 
fying grace, and this not per accidens, as the Holy Eucharist, but 
per se et ratione institutionis. 

The priest did right, therefore, in giving Extreme Unction with 
materia dubia in casu necessitatis, deficiente materia certa, but 
afterward the Sacrament must be repeated cum oleo infirmorum, to 
make it certain. 

All the more so was the priest bound sub gravi, to repeat the 
Extreme Unction, since the absolution given the sick man was 
absolutio dubia, he not having retained consciousness and not being 
absolved sacramentally beyond all reasonable doubt. 

If there were any danger of shocking any of the faithful present, 
by a repetition of Extreme Unction, the priest might obviate it 
by requesting to be left alone with the sick man for a few mo- 
ments. 






CONCERNING A WILL CASE 



87 



XVIII. CONCERNING A WILL CASE 

My Dear Doctor: 

In the Homiletic Monthly and Catechist, Vol. VIII, No. 2, page 
170, you try to solve a Casus Conscientiae, a Will Case.* Now, my dear doctor, 
I claim that nearly everything you say in that article is absolutely false. You 
say: "There can be no doubt that the laws of the State may and do bind in 
conscience." That the laws of the State may bind in conscience, transeat; 
that they do bind in conscience I deny, and I prove it. According to Moral 
Theology, lex non obligat ultra mentem legislatoris. Atqui; no State legis- 
lators ever intended to oblige any man in conscience to observe any law. 
Therefore civil laws do not oblige in conscience. Our civil lawgivers do not 
acknowledge any conscience. All our civil laws are penal laws, and no more. 
Hence any citizen is allowed to violate any law of the State without com- 
mitting a sin, for the law knows no sin. 

If the laws of the land bind in conscience, then a divorced man may marry 
a divorced woman! 

While the heirs in this case can not be compelled by law to pay the thou- 
sand dollars to charities, yet they are bound in conscience to do so, if it can 
be proven that it was the will of the father that one thousand dollars should 
be given to charities. 

Sacerdos. 

"Answer. It is our constant endeavor to solve the Cases of Con- 
science appearing in the Homiletic Monthly according to the 
principles of sound Catholic morality, as expounded by the great 
theologians of the Catholic Church. Upon the teachings of St. 
Thomas, St. Liguori, Cajetan, Suarez, Lugo, Bellarmine, Lessius, 
etc., and not upon any notions of our own, if we have any, do we 
rely for a solution of the difficulties presented to us. We are 
aware that the solutions we give of Cases of Conscience may not 
always meet with the approval of everybody, nevertheless, they 
will be found, upon examination, to rest upon the teachings of 
some, if not all, of the great theologians, whose orthodoxy and 
learning are both above suspicion. Thus in the solution of the 

— r 

♦The Case found on page 65 is referred to. 

86 



Will Case, to which "Sacerdos," in the above communication, takes 
exception, we did but solve the Case according to the principles 
laid down by St. Thomas, 1-2, q. 96, art. 4; Suarez, de Leg. 1. Ill, 
ch. 21; Bellarmine, de membris Ecc. militantis, 1. Ill, ch. 11, etc., 
and more recently by Bouquillon, theol. fund, de lege civili, ch. 1 ; 
Noldin, de VII praecept. n. 137; Tanquerey, de Contract, n. 617; 
Aertnys, 1. I, tract. Ill, n. 144, etc. 

Suarez, loc. cit., treating of the power of the civil law to bind 
the conscience, says : 

"In hac re fuit sententia negans posse magistratus civiles per 
leges suas in conscientia obligare. Ita sentiunt a fortiori here- 
tici, qui negant esse in principibus veram potestatem ad leges fer- 
endas." Among Catholics, he continues, Gerson, in a work on the 
spiritual life, seems to deny the power of the civil law to bind 
the conscience, but without any good reason. Then he says : "Di- 
cendum vero est legem humanam civilem habere vim et efficaciam 
obligandi in conscientia. Haec est sententia communis Catho- 
licorum, ut videre licet in divo Thoma cum expositoribus. — 1, 2, 
q. 96, art. 4, etc. Here follows a long list of theologians, whom 
Suarez quotes as justifying him in asserting that it is the com- 
mon opinion of Catholic theologians that the civil laws bind in 
conscience. Among those whom he quotes we find Soto, Bellar- 
mine, Navarrus, Salmeron, S. Antoninus, etc. Hereupon Suarez 
makes the statement that the assertion that the civil laws bind in con- 
science is de fide, or proximo, fidei. "Et videtur assertio vel de fide, 
vel proxima fidei ; nam fere aperte* colligitur ex illo Pauli ad Ro- 
man. 12 : Qui potestati resistit, Dei ordinationi resistit: qui autem 
resistunt, sibi ipsis damnationem acquirunt. Quod de damnatione 
etiam apud Deum intelligit ibi Chrysost. horn. 23. Item additur 
ibi ratio his verbis: Dei enim minister est, unde colligitur illi esse 



88 



THE CASUIST— VOL. II 



CONCERNING A WILL CASE 



obediendum, non tantum propter tram, sed etiam propter con- 
scientiam; ac si aperte dicer et, non solum propter timorem poenae, 
sed etiam propter vitandam culpam; hoc enim in rigore significat 
particula ilia propter conscientiam, ut Ambros. Anselm. div. 
Thorn. Theoc. et fere alii intellexerunt." The reason why the 
civil law binds in conscience, says Suarez, is because the legislator 
in making it acts as the minister of God, and by the power which 
he receives from God. The divine law and the natural law require 
that the laws made by legitimate rulers be obeyed. Yet, observes 
Suarez, we must not think that it is the divine law or the natural 
law that binds our conscience to obey the civil law; it is the civil 
law itself that places the burden of obedience on us. "Nee vero 
inde sequitur vel culpam illam (disobeying the civil law) esse 
proprie contra legem naturae, vel obligationem ad actum praecep- 
tum lege humana esse naturalem, quia, ut in superioribus tetigi, 
lex humana se habet ut causa proxima et secunda, quae nititur in 
lege aeterna tamquam in causa prima; effectus autem, qui proxime 
est a causa secunda, ita ut a prima non fieret, nisi per illam, 
secundae simpliciter tribuitur, et ideo obligatio haec, etiamsi sit in 
conscientia (of obeying the civil law) simpliciter est a lege hu- 
mana" 

Suarez' eighth proposition (1. Ill, ch. 21) is this: Praedkta 
protestas est necessaria ad convenientem gubernationem reipublicae 
humanae. As the wife is bound in conscience to obey the husband, 
and the son to obey his father, and the servant his master, and the 
monk his superior, so a fortiori, is the citizen bound in conscience 
to obey the laws of the state. "Et ratio a priori est, quia guberna- 
tio sine potestate cogendi inefficax est, et facile contemnitur ; coactio 
autem sine potestate obligandi in conscientia, vel est moraliter im- 
possibilis, quia coactio justa supponit culpam, quod est valde proba- 






89 



bile, ut magis declarabitur in seq. et tractanda de lege poenali; vel 
certe est valde insufficiens, quia per earn non posset in multis casibus 
necessariis sufficienter reipublicae subvenire." The divine law and 
the natural law are altogether inadequate, being too indefinite and 
indeterminate for the government of a state. When the legitimate 
lawmakers, therefore, in any state, make just laws for the pro- 
tection and well-being of the state, those laws are binding in con- 
science, by virtue of the human power that made them, (< obligant 
immediate ex vi potestatis legislativae humanae, quae obligationem 
illam in conscientia potest addere supra obligationem legis naturalis 
vel divinae" (loc. cit.). 

Omitting the intervening chapters, we come to ch. 27, "Utrum 
obligatio legis humanae, quoad gravitatem ejus, ex intentione legis- 
latoris pendeat." 

"Ut intelligatur punctum questionis, supponimus variis modis posse 
legislatorem se habere in f erenda lege ; primo, ut simpliciter intendat 
legem ferre circa talem materiam, et non amplius: ******* i n 
primo modo sine dubio lex obligat in conscientia, quia vera lex 
natura sua habet hunc effectum, si non excludatur; unde eo ipso 
quod intentio fertur ad veram legem, et hie effectus non excluditur, 
est sufficienter intentus, et efficitur per legem. Neque est semper 
necessaria formalis intentio obligandi in conscientia, vel sub mor- 
tali ; imo vero hoc vix venit in mentem legislatoris civilis, et maxime 
in infidelibus, de quibus est eadem ratio. Idem est in voto et pro- 
missione, quia, si fiant, statim obligant in conscientia, licet promit- 
tens nihil de conscientia cogitaverit; idem ergo est in lege, neque 
est ulla ratio cur expressior intentio necessaria sit." 

We have given here a mere outline of Suarez's teaching, never- 
theless it is sufficiently clear from what we have quoted that 
Suarez maintains that the civil law may, and in fact does, bind in 



9° 



THE CASUIST— VOL. II 



conscience, even though the law-giver did not think about con- 
science or an obligation in conscience, when he made the law, and 
even though he be an infidel, and deny all conscience. 

Cardinal Bellarmine's teaching is identical with Suarez's, as may 
be seen by a reference to his treatise de membris Ecclesiae militantis, 
bk. Ill, ch. ii. 

St. Thomas, 1-2, q. 96, art. 4, asks : "Is the obligation imposed 
on man by human law binding in the court of conscience?" He 
makes answer as follows: "Laws enacted by men are either just 
or unjust. If they are just, they have a binding force in the court 
of conscience from the Eternal Law, whence they are derived. 
Laws are said to be just in respect of the end, when they are or- 
dained to the general good ; in respect of the author, when the law 
does not exceed the competence of the legislator ; and in respect of 
the form, when burdens are laid upon subjects in proportionate 
equality in order to the general good. For as one man is a part 
of a multitude, all that every man is and has belongs to the mul- 
titude, as all that every part is, is of the whole ; hence also nature 
inflicts loss on the part to save the whole. Under this considera- 
tion the laws that impose these burdens according to proportion 
are just and binding in the court of conscience, and are legal laws." 

Dr. Bouquillon, sometime professor of moral theology in the 
Catholic University at Washington, was one of the most eminent 
of modern moral theologians. In his Theologia mor. fund, de lege 
civili, 222 ss. he says: 

"Lex civilis vere moralis est, quippe quae non meram coactionem 
importat, sed obligationem producit in conscientia et coram Deo. 
Fertur enim auctoritate a Deo communicata, nomine Dei et a Deo 
sancitur. Sane in documentis inspiratis habemus principum po- 
testatem esse a Deo, et principes esse Dei ministros, ab ipso missos ; 



CONCERNING A WILL CASE 



9* 



proinde illis obediendum esse necessitate, propter Deum et con- 
scientiam; consequenter eos, qui principibus resistunt, ipsi Deo re- 
sistere et damnationem sibi acquirere. Sancti Patres autem unani- 
miter docent sic audiendum esse superiorem, qui est Dei vicarius, 
quomodo ipse Deus, quia obedire superior i jussit Deus, et quia 
Deus a non obtemporantibus poenas haud leves repetet. Idem recta 
ratio facile evincit: licet enim lege civili homo immediate ordinetur 
ad solum bonum temporale, mediate tamen etiam ordinatur ad 
bonum aeternum, siquidem, juxta divinam dispositionem, temporale 
aeterno subservit: ideoque ejus violatio a fine avertit." 

For every statement in the foregoing the learned author quotes 
the Scriptures and the Fathers. He proceeds : 

"Obligationem in conscientia producit lex civilis qua talis, non 
autem solum quatenus legem naturalem, divinam aut ecclesiasticam 
continet et applicat; id evidenter colligitur ex textibus allatis. 
Producit autem obligationem in conscientia lex civilis ipsa vi im- 
perii, non autem vi specialis voluntatis imperio additae; videlicet, 
ad obligationem sufficit ut superior intendat vere imperare, non 
requiritur ut expresse intendat obligationem in conscientia impo- 
nere; haec enim necessario sequitur ex imperio; unde immerito 
nonnulli aliquando videntur dubitare de legum civilium obligatione 
in conscientia, eo quod moderni legislatores conscientiam, imo et 
Deum ipsum minime curent. Praeterea obligationem producit lex 
civilis ex se, propria efficacia, et independenter ab Ecclesiae appro- 
batione." 

Tanquerey, de contract, ch. 1, says: 

"Potestatem civilem tales leges (invalidating contracts) condere 
posse, omnes admittunt. Tota difficultas est in definiendo quaenam 
leges civiles ita obligent. Quando legislator id clare declaravit, 
nulla est difficultas; sed plerique hodierni legislatores explicite de 



9 2 



THE CASUIST— VOL. II 



morali seu naturali obligatione legum sermonem non habent; unde 
ex scopo legis questio solvi debet; videlicet si bonum publicum pos- 
tulat ut lex habeatur ut irritans etiam ante judicis sententiam, 
statim ut invalidus haberi debet in conscientia, etc." 

In confirmation of this he refers to a decision of the Holy Office, 
given in 1873. The Italian government passed a law in 1866 re- 
quiring its creditors to accept paper money in payment, regardless 
of any previous contract to the contrary. The Holy Office was 
asked whether this law was binding in conscience; it answered, on 
January 21, 1873: "regulariter affirmative, nisi peculiares obstent 
circumstantiae" (Acta S. Sedis, t VII, p. 211). 

Aertnys, C. S. S. R., says: "Omnis lex humana, proprie dicta 
semper et necessario obligat in conscientia saltern ad aliquid. **** 
Neque refert civiles Legislatores infideles esse, qui non curant con- 
scientiam; sufficit enim quod simpliciter obligare velint, eo ipso 
oritur obligatio in conscientia, quemadmodum docet Apost. ad Rom. 
xiii, 1, 2, 5, loquens de principibus ethnicis: "Omnis anima potes- 
tatibus sublimioribus subdita sit ; non est enim potestas nisi a Deo ; 
quae autem sunt, a Deo ordinatae sunt. Itaque qui resistit potestati, 
Dei ordinationi resistit; qui autem resistunt, sibi ipsi damnationem 
acquirunt Ideo necessitate subditi estote, non solum propter iram 
sed etiam propter conscientiam" (de legibus, c. Ill n. 144). 

Fr. Noldin, S. J., says: "De intentione autem hall nota: sicut 
necesse non est, ut legislator explicite intendat obligationem in 
conscientia imponere, ut lex in conscientia obliget, ita necesse non 
est, ut explicite intendat obliagtionem gravem imponere, ut lex sub 
gravi obliget; sicut enim intentio obligandi in ipso usu potestatis 
legiferae contineri censetur, pari modo legislator materiam gravem 
generatim etiam sub gravi injungere velle praesumitur. Quare 



CONCERNING A WILL CASE 



93 



omnino tenendum est, etiam legislatorem inHdelem condere leges 
in conscientia obligantes" (de legib. n. 137). 

These quotations might be continued indefinitely, but sufficient 
have been given to make it clear that, according to Catholic theo- 
logians, the laws of the state do, as a rule, bind in conscience, even 
though the legislators be unbelievers and infidels, and have no 
concern either about God or conscience. Indeed, from a perusal 
of these same theologians, it will appear that, instead of all modern 
civil laws being merely penal, the great body of the civil law is 
moral, i. e., binding in conscience, and that the purely penal laws 
are very few when compared to the whole body of the law. 

Among the laws of the state that bind in conscience are to be 
included many laws concerning the ownership, purchase and sale, 
etc., of property; the laws concerning the prescription of property, 
treasure trove, valuables found, certain of the laws invalidating 
contracts, and certain of the laws invalidating last wills and testa- 
ments. For example, Fr. Noldin says: "Leges civiles jura stat- 
uentes seu dominia trans ferentes, ordinarie ante omnem judicis 
sententiam in conscientia obligant ex justitia commutativa. Nam 
lex ab auctoritate competenti in bonum commune condita, in con- 
scientia obligat. Atqui jura, quae ad bona fortunae refer untur, 
constituunt objectum justitiae commutativae ; quare leges praecep- 
tivae, quae jura civium de bonis fortunae statuunt, ex justitia com- 
mutativa obligant" (de VII, praecept. n. 347). 

In like manner, the civil laws concerning treasure trove, invalidat- 
ing the contracts of minors, excluding certain persons from the 
benefits of a will, etc., are all binding in conscience. 

As a rule the dispositions of the civil law regarding last wills and 
testaments only affect the same civilly, i. e., in foro externo, ante 
judicis sententiam. "Si ergo," says Noldin, "infirmus morti proxi- 



94 



THE CASUIST— VOL. II 



mus, viva voce donet alicui legatum, donatio, quippe carens forma 
legali, informis est: ideo haeres non tenetur solvere legatum et 
solutum juridice repetere potest, quia uti potest jure, quod a lege 
ei conceditur; sed neque legatarius tenetur illud reddere, donee 
haeres irritationem donationis per judicem impetraverit ,, (de vi legis 
civil, n. 3). 

Fr. Aertnys, C. S. S. R., asks: "An lex indirecte irritans actum 
sive contractum temporalem, effectum sortiatur in foro conscientiae, 
ante judicis sententiam? Sententia probabilior affirmat, etc." "Ex 
dictis sequitur haeredem vel legatarium ex testatnento non solemni 
posse tuta conscientia, antequam ullus possidet, accipere et retinere 
hereditatem vel legatum, quamdiu ab illo non abjudicatur; quia 
possidet certa voluntas defuncti. Similiter haeres ab intestato 
potest tuta conscientia ejusmodi testamentum non exequi, vel im- 
pugnare, et eo expugnato per sententiam judicis, obtinere relicta a 
testatore; quia possidet jus succedendi ab intestato, et uti potest 
remedio juris" (de legibus, n. 148). 

The Will Case to which "Sacerdos" objects was solved accord- 
ing to these principles. It was a "testamentum, nullum propter legem 
civilem irritantem, ad causas profanas, cum legato pio ei inserto." 
Is such a last will and testament valid? 

The first thing to be settled is, was the charity to which the tes- 
tator desired to give one thousand dollars, a vera causa pia? 

The second question was, were there at least two witnesses 
present when the testator signified his will, or was his will in 
writing? 

Thirdly, was the beneficiary in good or bad faith? 

From the details of the Case as presented to us, we could not 
settle these questions, and even had we been able to settle them, 
it is disputed by theologians whether a last will and testament 



CONCERNING A WILL CASE 



95 



ad causas profanas, containing a bequest for a pious purpose, is 
valid by reason of the pious bequest, when it is invalid for the 
lack of necessary legal formalities. (Cf. any of the older or 
more recent theologians on this point.) 

Since these things are so, we still believe that the solution of the 
Will Case here referred to was correct. 



XIX. WASHING THE CHURCH LINENS 

Father Paul, a young priest, is assigned to a parish where it is 
the practise for the sisters to wash the altar linens. Among these 
linens are the purificators and corporals. In the seminary it was 
taught that certain of the altar linens ought to be washed only by 
a man in sacred orders, and Father Paul remembers having taken 
his turn at this work after he had received subdeacon's orders. He 
desires to know whether it is only a pious practise for a man in 
sacred orders to wash the purificators and corporals, or whether 
there is any strict obligation for a priest or major-order man to 
wash them, or may they be turned over to the sisters together with 
the rest of the church linens to be washed and repaired by them. 

Answer. I. The purificators, corporals and palls, when soiled, 
must be washed by a priest or deacon, or at least by a subdeacon. 
It is not lawful to give them to any one else, even to religious 
women, until they have been first washed, at least once, by a man 
in sacred orders. This is of strict obligation, and by no means 
a mere pious or becoming practise. 

I. The third part of the decree of Gratian, in the Corpus 
Juris Canonici, treats "de consecratione." Distinctio I, canon 40, 
prescribes how the altar linens shall be washed. "Pallas 
vero, et vela sanctuarii, si sordidata fuerint ministerio, Diaconi 
cum humilibus ministris intra sanctuarium lavent, non ejici- 
entes foras a sanctuario: et velamina Dominicae mensae ab- 
luant: ne forte pulvis Dominici corporis male decidat. Sindonem 
vero non foris abluant: et erit haec operanti peccatum. Idcirco 
intra sacrarium ministris praecipimus haec sancta cum diligentia 
custodire. Sane pelvis nova comparetur, et praeter hoc nil aliud 

90 



WASHING THE CHURCH LINENS 



97 












tangat. Sed nee ipsa pelvis velis apponatur lavandis, nisi quae ad 
Dominici altaris cultum pertinent. Pallae altaris solae in ea 
laventur, et in alia, vela januarum." In this canon, therefore, it is 
commanded, and not merely recommended, that the altar linens, 
when soiled, be washed by a deacon, assisted by clerics of lesser 
degree, a Diacono cum humilibus ministris; which does not mean 
that the clerics of lesser degree than the deacon may themselves 
wash the altar linens, but that they are to assist the deacon in the 
performance of this ministry. This canon of the decree of Gratian 
contains some prescriptions that have since been abrogated by the 
general practise obtaining in the Church. Thus, for example, the 
canon ordains that the linens shall be washed within the sanctuary, 
and that they shall not be removed from the sanctuary. Also that 
the altar cloths are to be washed in the same way as the other 
linens. But the general practise of the Church, abrogating cer- 
tain of the provisions of this fortieth canon of Gratian's decree, does 
not extend to the washing of the purificators, corporals or palls, 
which must still be washed by a man in sacred orders. This ap- 
pears from repeated answers of the Congregation of Rites. Again, 
in the rite of ordination of a subdeacon, as contained in the Roman 
Pontifical, the bishop admonishes the cleric, whom he is about to 
raise to the office of subdeacon : Subdiaconum oportet pallas altaris 
et corporalia abluere. According to a decision of the Congrega- 
tion of Rites, September 12, 1857, this washing of the purificators, 
corporals and palls, since it is enjoined by the Roman Pontifical on 
the subdeacon, as one of the duties of his office, may not be com- 
mitted to any persons not in sacred orders except by the Roman 
Pontiff himself. 

2. The purificators, corporals and palls must be washed by hand, 
and not with instruments or by machinery. It is not required that 



9 8 



THE CASUIST— VOL. II 



WASHING THE CHURCH LINENS 



99 



they should be altogether clean, when they leave the hands of the 
subdeacon, or that they should not be washed again, but neverthe- 
less, the cleansing that they receive at the hands of the subdeacon 
should be a real washing, vera ablatio. According to the rubrics 
found at the beginning of the Missal, de defectibus (tit. x, n. 12), 
the corporals, purificators and palls should be washed three times, 
and each time, according to the common opinion of the rubricists, 
in fresh water. But these two extra washings are not considered 
preceptive, but only commendable, while the first washing is of 
strict obligation. This is evident, the rubricists say, from the 
canon of the decree of Gratian, as well as from the Roman Pon- 
tifical, both of which prescribe only one washing. 

3. According to the decree of Gratian these linens are to be 
washed intra sanctuarium. The general practise of the Church, 
as well as the interpretations of the rubricists, take these words as 
meaning that these linens are not to be washed in the houses of 
the laity. 

4. The linens are to be washed in a bowl or basin reserved for 
this sole purpose, and are never to be washed with any household 
linens. The words of the canon are explicit: Sane pelvis nova 
comparetur, et praeter hoc nil aliud tangat. Sed nee ipsa pelvis 
velis apponatur lavandis, nisi quae ad Dominici altaris cultum per- 
tinent. Pallae altaris solae in ea laventur, et in alia, vela januarum. 

5. The water used at least for the first washing must be poured 
into the sacrarium, according to the canon. 

II. It is never lawful for sisters or other religious women to give 
the linens the first washing. In the office of St. Soter, as found in 
the Breviary for April 22, it is stated that the saint ordered that 
women of v religious orders should not touch the altar linens. 
"Soter sancivit ne sacrae virgines vasa sacra et pallas attingerent." 



The decree of Gratian, distinctio XXIII, canon 25, says: Sacratas 
Deo foeminas, vel Monachas, sacra vasa vel sacratas pallas penes 
vos contingere et incensum circa altaria deferre, perlatum est ad 
Apostolicam Sedem: quae omnia reprehensione plena esse et vitu- 
peratione, nulli recte sapientum dubium est. Quamobrem hujus 
sanctae sedis auctoritate haec omnia vobis resecare funditus quanto 
citius poteritis censemus. Et ne pestis haec latius divulgetur, per 
omnes provincias abstergi, citissime mandamus. 

The same is gathered from the response of the Congregation of 
Rites, September 12, 1857. The Congregation was asked: "Utrum 
moniales seu piae foeminae vitam communem sub regula degentes, 
possint cum licentia Ordinarii abluere corporalia, pallas et purifi- 
catoria?" The Sacred Congregation answered: Negative. 

This prohibition, however, affects only the first washing. 

It is becoming that the second and third washing also should 
be done by a man in sacred orders, but it is not obligatory. There- 
fore, after the purificators, palls and corporals have been washed 
once by a person in sacred orders, there is no prohibition against 
handing them over to the sisters or other religious women, who 
will wash them again and iron and repair them. 



XX. A MARRIAGE CASE UNDER THE NEW 

DECREE 

Titius, an assistant priest in St. Bartholomew's parish, is aroused 
from sleep in the middle of the night and called to the neighboring 
parish of St. Thaddeus to administer the last Sacraments to one 
of his parishioners, named Cajus, who is taken suddenly very ill 
while visiting there in the house of Sempronia, a woman to whom he 
was never married, but by whom he has several children. Titius 
recalls, on the way thither, that Cajus is engaged to be married to 
Tiberia, Sempronia's sister, which engagement is in writing 
and signed by Titius himself as well as by Cajus, but not by Tiberia, 
because she can not write. Now Titius has been warned quite 
severely by the pastor of St. Thaddeus against trespassing on his 
parish to administer the Sacraments or perform any other sacer- 
dotal ministry. On the other hand, Titius has received authorization 
from the assistant priest of St. Thaddeus, who is a particular friend 
of his, to administer any of the Sacraments within the parish limits 
whenever he might desire to do so. Taking note of these things, 
and not wishing to disturb his friend, the assistant priest of St. 
Thaddeus, Titius resolves to marry Cajus and Sempronia without 
more ado. He makes two small boys, one ten and the other seven 
years old, act as witnesses. They are half asleep and grumbling 
because their sleep has been disturbed. Omitting the interrogations 
and the prayers, as found in the ritual, Titius marries the pair with- 
out any ceremony, simply having them express mutually their con- 
sent to the marriage. Returning home, Titius retains the fee for 
the marriage which Cajus gave him, and records the marriage on 
the books of St. Bartholomew's parish, but neglects to make any 

IOO 



A MARRIAGE CASE UNDER THE NEW DECREE 



IOI 



entry in the baptism records. All this happened since Easter Sun- 
day, April 19, 1908, on ^which day the new marriage law, "Ne 
temere/' of Pope Pius X, went into effect. 

Unde quaeritur: An Titius egerit temere? 

Answer. — "Nearly thirty years ago, 1880, Leo XIII, of blessed 
memory, acclaimed to the world the famous encyclical 'Arcanum,' 
which contains a most lucid and comprehensive exposition of the 
fundamental principles of Christian marriage ; and Pius X, through 
the Sacred Congregation of the Council, in order to make most 
practical these principles at the present hour, issued the decree 
'Ne temere/ which (1) changes the discipline of the Church with 
regard to 'sponsalia' (betrothal) ; (2) modifies the 'Tametsi' de- 
cree of the Council of Trent affecting clandestine nuptials : (3) pro- 
vides for a more perfect registration of marriage." (Pastoral of 
the Archbishop of New York on the new marriage law.) 

The above case falls under this new law of Pius X, and in order 
to treat it clearly and orderly, we shall consider : 

1. The sponsalia contracted by Cajus and Tiberia. 

2. The validity of the marriage between Cajus and Sempronia, 
as performed by Titius. 

3. The lawfulness of the said marriage. 

4. Titius' conduct in retaining the marriage fee and entering the 
marriage on the records of St. Bartholomew's church. 

I. The sponsalia contracted by Cajus and Tiberia. Since the 
Council of Trent, vera sponsalia, L ei, a true betrothal or marriage 
engagement, produced the following results: First, it created a 
diriment impediment publicae honestatis, to the subsequent marriage 
of either party to the betrothal, with a blood-relative in the first 
degree, of the other ; that is to say, a man can not marry either the 
mother, sister or daughter of the woman with whom he has con- 






102 



THE CASUIST— VOL. II 



tracted vera sponsalia, nor can the woman marry validly either the 
father, brother or son of the man to whom she is betrothed. 

Secondly, vera sponsalia create an obstructive or prohibitive im- 
pediment to the marriage of either party to them with any other 
person whatsoever. Now the new marriage law does not affect 
these consequences of vera sponsalia at all. They remain under 
the new law just what they have been since the Council of Trent. 
But the new law does affect the sponsalia themselves, restricting 
them to a written betrothal in the presence of witnesses and signed 
by the principals and the witnesses. Heretofore any kind of be- 
trothal, verbal or written, with or without witnesses, provided only 
that it was a real and true promise of marriage, induced the above 
impediments. Henceforth a betrothal, in order to create the above 
impediments, must be: 

1. A written contract, signed by the parties to the contract; and 
if either, or both, can not write, the name (X) mark must be placed 
on the contract, indicating the illiteracy. 

2. The signature of one witness is sufficient if the witness be the 
ordinary of the place, or the parish priest ; but if either or both the 
parties to the contract can not write, an additional witness, who can 
write, is required to attach signature. 

3. The signature of two witnesses is essential if the ordinary of 
the place or fhe parish priest does not sign; these two witnesses 
need not be ecclesiastics; they may be laymen; in case either or 
both parties to the contract can not write, three witnesses are re- 
quired, who will attach their signatures. 

These things being so, the written betrothal that existed between 
Cajus and Tiberia was not a true betrothal within the meaning of 
the new marriage law ; first, because it did not bear even the name 
mark of Tiberia, who could not write; and, secondly, because it 



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A MARRIAGE CASE UNDER THE NEW DECREE 



103 



lacked the signature of an extra witness, who should have signed 

it, together with the priest, since Tiberia did not know how to write. 

Therefore, this written agreement to marry did not place any 

obstacle in the way of Cajus' marriage to Sempronia, or to any 

one else. 

II. As regards the validity of the marriage of Cajus and Sem- 
pronia, it must be borne in mind that a marriage, in order to be 
valid according to the new legislation, must be : 

1. Contracted before the ordinary or the parish priest (or a priest 
duly delegated), provided the ordinary or the parish priest has 
jurisdiction over the place where the marriage is performed. 

2. Contracted in the presence of two witnesses besides the officiat- 
ing priest. 

3. Contracted in the presence of a priest having jurisdiction, who 
assists of his own free will and without compulsion, and asks and 
receives the consent of the contracting parties. 

The question now arises, Is the assistant priest of a parish to be 
considered a parochus in respect of marriage. Yes ; in missions all 
priests appointed to the universal cure of souls in any station come 
within the meaning of the term parochus. Fr. Noldin says : Nomine 
parochi intelligitur qui proprio nomine curam animarum actu 
exercet, etsi cura habitualis sit apud alium, v. g., capitulum, vel pa- 
rochiae nondum sint canonice erectae (Mat. n. 646). 

As regards the archdiocese of New York, the Archbishop has 
ordained : 

"Every priest of this diocese (New York) having faculties 
can validly assist at marriage, within the limits of his own parish, 
and can marry validly, within the limits of his own parish, not only 
his own parishioners, but also people from other parishes and other 
dioceses, provided there be no diriment impediment. A marriage 



io4 



THE CASUIST— VOL. II 



performed by a priest (without being duly delegated) outside the 
limits of his own parish is null and void." 

It is to be noted, continues the letter of the Archbishop of New 
York, first of all that it is not our intention to reserve to the pastors 
sole jurisdiction over marriage in their respective parishes. Every 
assistant priest, appointed to parochial work, is to exercise validly, 
in the parish to which he has been assigned, authority over marriage, 
similar to that invested in the pastor, except where, by special dele- 
gation, the pastor may receive extraordinary faculties for particular 
cases or circumstances. The assistant priests, however, will bear 
in mind that it is not becoming for them to grant authority to priests 
of other dioceses to perform the marriage ceremony in this diocese 
or to give permission to the faithful to marry outside their own 
parish or the diocese; these matters should be left to the pastors. 
The consent of the pastor is necessary that the assistant may, on 
any occasion, officiate licitly at marriage in the parish. 

It is evident from this that in the archdiocese of New York the 
assistant priests have the same jurisdiction over marriage in respect 
of its validity as the pastors. And this will undoubtedly be the 
practise in all the dioceses, because it secures the validity of the 
marriage contract, without derogating from the orderly control 
of the pastors of parishes over the marriages contracted in their 
parishes. When, therefore, the assistant priest of St. Thaddeus' 
parish granted authority to Titius to officiate at marriages within 
the limits of St. Thaddeus parish, the authorization was valid, al- 
though illicit, as against the will of the pastor of St. Thaddeus, 
and Titius could therefore assist validly at the marriage of Cajus 
and Sempronia. The papal decree says : 

"vi. The parish priest (and, therefore, the assistant priest, in 
New York diocese, at least) and the ordinary of the place may grant 



A MARRIAGE CASE UNDER THE NEW DECREE 



io5 



permission to another priest, specified and certain, to assist at mar- 
riages within the limits of their districts." 

But apart from this, Titius was authorized to marry Cajus and 
Sempronia validly and licitly because Cajus was dangerously ill, and 
a marriage was necessary for the relief of conscience and for the 
legitimation of the offspring. To quote again the words of the 
decree : 

"vii. When danger of death is imminent, and where the parish 
priest or the ordinary of the place, or a priest delegated by either 
of these, can not be had, in order to provide for the relief of con- 
science, and should the case require it, for the legitimation of off- 
spring, marriage may be contracted, validly and licitly, before any 
priest and two witnesses." 

Titius assisted validly, therefore, and licitly at the marriage of 
Cajus and Sempronia. The assistant priests of New York diocese 
are admonished that it is not becoming for them to grant authority 
to priests of other dioceses to perform the marriage ceremony in this 
diocese, as that belongs to the pastors. If, however, they do grant 
such authorization, without the pastor's leave, it is quite valid. Nor 
is it licit for the assistant priest to officiate on any occasion at mar- 
riage in the parish without the pastor's consent. 

III. The authorization, therefore, which Titius received from 
his friend, the assistant priest of St. Thaddeus, was valid, but illicit, 
as against the will of the pastor, and if Cajus had not been danger- 
ously ill and a marriage necessary without delay, Titius would have 
committed sin in marrying Cajus and Sempronia. Under the cir- 
cumstances, however, Cajus* illness rendered the marriage ceremony 
as performed by Titius both valid and licit. 

IV. The two small boys who were pressed into service as wit- 
nesses were competent, provided they were sufficiently aroused to 



io6 



THE CASUIST— VOL. II 



understand what was going on. The new marriage law prescribes 
no qualifications for the witnesses. A minor who has reached the 
age of discretion, or a non-Catholic, may be a witness. 

N. B. — In order to be licit the marriage ceremony must be per- 
formed by the pastor of the bride, and not, as heretofore, by the 
pastor of either the bride or the bridegroom. In this the new disci- 
pline differs from the old. He is considered the pastor of the bride 
in whose parish she has actually resided for one month, whether 
her intention was to remain there one month or no. Even though 
she had not resided in the parish for one month, "a case of grave 
necessity excuses from the obligation of seeking permission from 
the pastor or ordinary of either party." 

Titius, of course, must satisfy his conscience de statu liber o of 
Cajus and Sempronia ; that is, that they are free from every canonical 
impediment, and if from another diocese they must bear with 
them letters de statu libero from the competent authority. The 
marriage fee must be returned to the pastor of the place where the 
marriage is performed or to the parish priest of the contracting 
parties. Titius should have sent the names of Cajus and Sem- 
pronia and the witnesses to the pastor or assistant of St. Thaddeus 
parish, there to be entered on the marriage records. The decree says : 

"ix. After the celebration of a marriage, the parish priest, or 
he who takes his place, is to write at once in the book of marriages 
the names of the couple and of the witnesses, the place and day of 
the celebration of the marriage, and the other details, etc., and this 
even when another priest, delegated by the parish priest himself or 
by the ordinary, has assisted at the marriage." In this latter case the 
delegated priest is bound, conjointly with the contracting parties, 
to provide that the marriage is inscribed as soon as possible in the 
prescribed books. 



A MARRIAGE CASE UNDER THE NEW DECREE 



107 



It is also required by the new legislation that the marriage of 
Cajus and Sempronia be inscribed in the book of baptisms, opposite 
the record of their baptisms, and if they have been "baptized else- 
where, the parish priest who has assisted at the marriage is to 
transmit, either directly or through the episcopal curia, the an- 
nouncement of the marriage that has taken place, to the parish 
priest of the place where the person was baptized, in order that the 
marriage may be inscribed in the book of baptisms. 

"x. Parish priests who violate the rules thus far laid down 
are to be punished by their ordinaries, according to the nature and 
gravity of their transgression." (Decree of the Congregation of 
the Council on marriage, August 2, 1907.) 



A CASE OF RESTITUTION 



109 



XXL A CASE OF RESTITUTION 

Mary is a servant employed in the home of Mr. Smith. From 
time to time she is commissioned by her employer to purchase cer- 
tain things for his home. He orders her to purchase them at a 
particular business house that he names, and fixes the price that she 
is to pay for them. Mary, however, purchases them at another 
business house, where she gets them cheaper, and she keeps the 
difference for herself. She justifies herself by saying that the differ- 
ence in price represents the fruit of her own industry, and, there- 
fore, belongs rightfully to her. Moreover, she claims that she is 
underpaid by her employer, and that this difference in price makes 
up the shortage in her wages. Is Mary bound to make restitution, 
either to the business house from whom she failed to make the pur- 
chases, or to her employer? 

1. Mary is not obliged to make any restitution to the firm from 
whom she failed to purchase the goods. The reason why she is 
not so bound is because she did not sin against the virtue of com- 
mutative justice in not buying the goods from that firm, and only 
commutative justice imposes an obligation of making restitution. 
It is assumed, of course, that there were no other indirect con- 
siderations or circumstances which might bring the case under the 
virtue of strict justice. For, although, after a fashion, it might 
seem that Mary did an injustice to the firm from whom she failed 
to make the purchases when she had been ordered to do so by her 
employer, in defrauding them of a just profit that they might have 
realized on the sales, nevertheless, strictly speaking, Mary did not 
do them any real injury, since they had no strict right to such profit, 
either real or personal. Neither can it be maintained that the firm 
had at least a right ad rem to the profit that they would have real- 

108 



ized from the sale of the goods, since that profit was intended for 
them by Mary's employer, who ordered her to purchase the goods 
from this particular firm. Because Mr. Smith ordered his servant 
Mary to purchase certain goods, at a fixed price, from a particular 
firm, it does not follow that Mr. Smith intended to convey to that 
firm a strict right to the profit resulting from such purchase and 
sale. All that follows from orders such as Mary received, is that 
the employer desires to be furnished goods to his liking, with the 
guarantee that a particular business house furnishes, and if he in- 
tends the profit to go to that particular house, still he does not, 
under ordinary circumstances, make a conveyance of strict right 
to such profits to that particular firm. We say, under ordinary cir- 
cumstances, because there may be cases in which, owing to peculiar 
circumstances, the employer might desire to convey to some par- 
ticular business house a strict right to the profits of such sales, as, 
for instance, if Mr. Smith should enter into a contract with a 
particular business house to purchase a certain line of goods from 
them, uniformly, in consideration of which agreement, the firm 
contracts to furnish the goods at a uniform price, irrespective of 
market prices at any particular time prevailing. In this case, of 
course, the firm would have a strict right to make the sales and to 
realize the profit, and Mary dare not substitute another firm with- 
out incurring an obligation of restitution, since she does a real 
injury to the firm that holds the contract with Mr. Smith, violating 
their strict rights. But apart from particular cases, and under 
ordinary circumstances, an order such as Mary received from Mr. 
Smith implies no conveyance of strict right to profits to any par- 
ticular business house, and, therefore, the transgression of such 
an order does not induce an obligation of restitution. 
a. But Mary's case stands quite different, if we view it in relation 



no 



THE CASUIST— VOL, II 



A CASE OF RESTITUTION 



in 



to her employer, Mr. Smith. Mary is bound to restore the differ- 
ence in price to Mr. Smith, even though the goods that she pur- 
chased elsewhere for less money are equally as good as what she 
would have obtained at the firm designated by Mr. Smith. The 
reason is that Mary has no claim or title to the difference in price. 
The money that Mary received from her employer belongs to the 
employer until it is spent. The employer, in handing over to Mary 
a certain sum of money with which to buy goods, does not re- 
linquish to Mary his ownership of the money, but simply makes 
Mary his agent and entrusts to her his property, in as far as the 
same is necessary for the purchase of certain goods. Mary is 
obliged, both by reason of her position as agent for Mr. Smith, and 
the salary or wages that she receives, to give her labor to Mr. 
Smith, and to safeguard his interests. This is the duty of agents 
and the profits of their industry and sagacity belong to the em- 
ployer who hires them and pays them precisely for this. "Quidquid 
parcit, parcit domino." The fact that Mary would have spent all 
the money given her by her employer, had she bought the goods 
from the firm designated by Mr. Smith, without any advantage ac- 
cruing to her employer, does not change the case. The money that 
she has over is Mr. Smith's money, and res clamat domino. Mr. 
Smith has not abdicated his right to his money, or to that part of it 
which is still in the hands of his servant, nor has he conveyed any 
rights in it to Mary. It is the same as if Mary had saved the money 
from Mr. Smith's house, while the same was being destroyed by 
fire ; the saving of the money or the rescuing of property from de- 
struction by fire, does not transfer ownership of the money or prop- 
erty from the owner to the rescuer. The money belongs to the 
original owner, in this case to Mr. Smith, and must be restored to 
him. The reason that Mary urges in justification of retaining the 



difference in price, namely, that the difference represents the fruit 
of her own industry, is hardly a valid reason. In some particular 
case we can see how it might be, but ordinarily there is no special 
industry manifested in a case like this, nor is there any extraordi- 
nary sagacity or special labor required, any more than what the 
ordinary run of servants would quickly put in evidence if it were 
just and right to profit by it. 

Nor is the other reason that Mary advances to justify her con- 
duct a good and valid reason, namely, that she is underpaid and 
the profit that she makes on her purchases makes up the balance 
of the wages that she thinks are due her. She contracted with Mr. 
Smith of her own free will to work for a certain wage, and she 
can not of her own authority increase her pay. She must keep the 
contract. If secret compensation were allowed to servants in cases 
like Mary's, the door would be opened to all kinds of stealing. 
Innocent XI was assuredly right when he condemned the following 
proposition : "Servants and domestics are allowed to take secretly 
from their employers enough to compensate them for their work if 
the same exceeds the salary they receive." 

"Famuli et famulae domesticae possunt occulte heris suis sur- 
ripere ad compensandam operam, quam majorem judicant salario 
quod recipiunt" (Prop 57, damnata ab Inno. XI). 



XXII. ABSOLVING PENITENTS WITHOUT 

ADMONITION 

A certain confessor enjoys quite a requtation for expediting mat- 
ters in the confessional. As a rule he pays no attention to the dif- 
ferent classes of penitents who approach his confessional. He 
rarely asks a question ; He allows the penitent to tell his sins without 
interruption, and then if he thinks him at all disposed, he absolves 
him immediately, without any word of instruction or admonition. 
On the vigils of great feasts, when the number of penitents is very 
great, he does not permit his penitents to make a full confession, 
but when they have told one or the other sin, he admonishes them 
to tell the rest of their sins in their next confession, and then ab- 
solves and dismisses them. He maintains that he is justified in 
acting thus, because otherwise he would never be able to hear all 
the people who come to him. To instruct or to admonish penitents 
in the confessional is not an essential part of the Sacrament of 
Penance, he says, nor is the confessor strictly bound to interrogate 
the penitent, provided the penitent confesses materiam suMcientem. 
What must be thought of his method of action? 

Answer.— The practise of this confessor is certainly blameworthy, 
because he is neglecting certain strict obligations that are binding 
on the confessor's conscience. 

First, as regards the practise of dismissing all penitents indis- 
criminately, without admonition or instruction. Benedict XIV, in 
his encyclical letter, Apostolica Constitutio, of July 26, 1749. issued 
for the jubilee of the following year, admonishes all confessors 
that they do not discharge the obligations of their office, but, on the 
contrary, that they are guilty of mortal sin, if, while sitting in the 
sacred tribunal of Penance, they show no solicitude for their pern- 

112 



ABSOLVING PENITENTS WITHOUT ADMONITION 113 



tents, but, without admonition or instruction, absolve them im- 
mediately they have finished the recital of their sins. The words 
of the Encyclical are as follows: 

Ut meminerint suscepti muneris partes non implere, vmo vera 
gravioris criminis reos esse eos omnes, qui cum in sacro Poenitentiae 
tribunali resident, poenitentes audiunt, non monent, non interro- 
gans sed expleta criminum enumeratione, absolutionis formam illico 
proferunt 

Every priest who exercises the ministry of the Sacrament of 
Penance is, according to the uniform teaching of the theologians, a 
teacher, a physician and a judge. As a teacher he is bound to in- 
struct the penitent concerning the things that are, hie et nunc, 
required for the worthy reception of the Sacrament, as well as in 
the things he ought to know, in order to be able to lead a Christian 
life. As a physician of souls, he is required to investigate the causes 
of the spiritual illness of his penitents, that is to say, the nature and 
causes of their sins, in order to apply suitable spiritual remedies in 
each and every case. And, finally, as every judge is obliged to hear 
and to study the whole case of the culprit before him, to consider 
its various phases and to weigh justly all extenuating or aggravating 
circumstances' before he renders a final judgment ; so likewise does 
the office of the confessor require of him, as a judge in the court 
of conscience, that he study the state of the penitent's conscience, and 
consider his dispositions and judge of his firm purpose of amend- 
ment, and then only to give or deny him absolution. Now it is 
evident that the confessor mentioned in this case does not and can 
noyt fulfil this threefold duty of teacher, physician and judge. His 
purpose is not to instruct and to heal and to judge; his purpose is 
to hear and to absolve as many penitents as possible. It stands to 
reason, of course, that where the number of those desiring to con- 






ii4 



THE CASUIST— VOL. II 



ABSOLVING PENITENTS WITHOUT ADMONITION 



"5 



fess is very great, and they are for the most part pious souls, who 
are accustomed to approach the sacred tribunal of Penance fre- 
quently and have at the most only venial sins to confess, and the 
confessor knows that they are sufficiently instructed concerning the 
Sacrament of Penance, and rightly disposed, it stands to reason, I 
say, that the confessor may dispatch his work expeditiously, be- 
cause such penitents do not need the spiritual care and help of the 
confessor in order to receive the Sacrament of Penance worthily 
and with profit. But to proceed in the same manner with all peni- 
tents indiscriminately, whether they be known or unknown to the 
confessor, even with the ignorant and the poorly instructed, whether 
they confess mortal sins or venial sins, is certainly not to administer 
the Sacrament of Penance as we are bound by grave obligations to 
administer it. For experience proves that there are those who 
approach this holy tribunal unprepared, who have not sufficiently 
examined their conscience, who through false shame hesitate to con- 
fess certain sins, who are lacking in true contrition, though believ- 
ing themselves contrite, because they have repeated orally the act 
of contrition. Now the prudent and careful confessor, whose earn- 
est desire is to fulfil this holy ministry validly and licitly, with fruit 
and with profit, as the Church ordains that it shall be fulfilled, will 
endeavor to discover and correct the faults and defects and short- 
comings of his penitents, by prudently questioning and instructing 
and disposing them, lest their confession be fruitless or even sacri- 
legious. If the penitent confess mortal sins, he ought to be ad- 
monished of their heineousness, in order that he may be moved to 
realize his spiritual condition and abhor his sins and take the neces- 
sary means of shunning them in the future. If such penitents be 
absolved and dismissed incontinently from the sacred tribunal with- 
out a word of admonition or advice, they will very likely consider 



their sins of little consequence and never come to a realization of 
the necessity of correcting them, and thus will they speedily fall 
into them again. 

Every confessor who has had experience of souls in the tribunal 
of Penance appreciates the gravity of this danger. For this very 
reason the Roman Ritual admonishes confessors to be careful to 
instruct their penitents regarding the condition of their souls, en- 
deavoring to make them realize the number and gravity of their 
sins and to dispose them to contrition and a firm purpose of 
amendment. 

"Detnutn, audita confessione, ferpendens peccatorum, quae ille 
admisit, magnitudinem et multitudinem, pro eorum gravitate, ac 
penitentis conditione, opportune correptiones ac monitiones, prout 
opus esse viderit, paterna charitate adhibebit et ad dolorem et con- 
tritionem efhcacibus verbis adducere conabitur, atque ad vitam emen- 
dandam ac melius instituendam inducet, remediaque peccatorum 
tradet." 

The great number of penitents waiting to be heard does not excuse 
the confessor from the obligation of admonishing, correcting and 
disposing them, so that the reception of the Sacrament of Penance 
may be of benefit to them. St. Francis Xavier was accustomed to 
say that it was better to hear a few confessions, and to hear them 
well, than to hear a great many and to only half hear them. And 
St. Alfonsus says that it matters little whether there be others 
waiting to confess or whether some will be obliged to depart with- 
out being heard; for on the day of judgment the confessor will 
have to render an account of those he actually heard, and not of the 
others. 

"Parum refert, quod alii expectant aut inconfessi discedant; con- 
fessarius enim de hoc tantum, qui sibi nunc confitetur, non vero de 



\ 



n6 



THE CASUIST— VOL. II 



aliis, in die judicii rationem redder e debet" (Praxis confess. 

n. 7). 

Again it is quite blameworthy that the confessor, on the eves of 
great festivals, when the number of confessions is very great, 
should permit the penitent to confess only one or two sins and then 
absolve him, with the admonition to confess his other sins in his 
next confession. It is expressly stated in all moral theologies that 
the number of penitents desiring to be heard in confession can 
never be a valid or just reason for making only a partial con- 
fession, even though many must depart unheard and unshriven. 
Under all such circumstances a full and integral confession of all 
mortal sins is required of the penitent, sub gravi. The practise of 
absolving penitents without permitting them to confess all their 
mortal sins, because otherwise many must depart without absolu- 
tion, is expressly condemned by Pope Innocent XI, in the 59th pro- 
scribed proposition. 

"Licet sacramentaliter absolvere, dimidiate tantum confessos, 
ratione magni concursus penitentium, qualis v. g. potest contingere 
in die magnae alicujus festivitatis vel indulgentiae" 

The reason why this proposition was condemned, says Billuart, 
is that the harm done by sending some penitents away unheard is 
not so great, as to justify a partial confession, especially when there 
is danger of absolving the unworthy, by reason of the precipitation 
with which the confessions are heard and the omission of a part of 
one's sins. 



XXIII. CONCERNING THE EXCOMMUNICATION IN- 
CURRED BY THOSE WHO INJURE THE RULERS 
OF THE CHURCH EITHER IN BODY, IN THEIR 
LIBERTY, OR, IN THEIR DIGNITY 

Sempronius, an excommunicated (vitandus) citizen, died and was 
buried in consecrated ground. The bishop, hearing of this, caused 
the body to be exhumed and reinterred in a non-consecrated ceme- 
tery. This angered the mayor of the town, who commanded that 
the bishop and his vicar-general (who was a bishop in partibus) 
should be expelled from the town. 

Titius, a friend of the mayor and at the same time hostile to the 
bishop, left no stone unturned to carry out the wishes of the mayor. 
So the bishop was compelled to fly from the episcopal city. The 
people, roused to anger by the action of the mayor, would not suffer 
him to depart from the diocese. Yet, fearful of the consequences 
if the order of the mayor was not obeyed, he retired by night to the 
residence of a neighboring bishop. The vicar-general took up his 
residence at the end of the diocese with a friend. 

Now the question is, what crime is punished by excommunica- 
tion in Part I, Article V t of the constitutions of the bull Apostolicae 
Sedis. 

The crime which merits the aforesaid penalty is the crime of 
personal sacrilege committed by the contumelious treatment of the 
officials of the Church. In the bull Apostolicae Sedis there are two 
excommunications fulminated against all who injure ecclesiastics. 
The first is contained in Article V, the second in Part II, Article II, 
Violentas manus, etc. Although the two penalties were intended 
to punish the selfsame crime, yet there is a wide difference between 
them. The first was established to safeguard the person, liberty 

117 



n8 



THE CASUIST— VOL. II 



CONCERNING EXCOMMUNICATION 



119 



and dignity of the hierarchy; that is of the cardinals, patriarchs, 
archbishops, bishops and apostolic legates. The other to protect 
all ecclesiastics. Again the excommunication contained in Article 
V is reserved to the Pope modo speciali; while that in Article II 
is reserved simpliciter. 

Thirdly, while the first ordinance is to be interpreted strictly ac- 
cording to the principle "odiosa sunt restringenda" the second has a 
most broad application. Accordingly the first excommunication is 
not merited by other persons or by other crimes than those specifi- 
cally designated by the article in question. Hence one who would 
kill a bishop-elect but not yet consecrated, or who would throw 
mud at a consecrated bishop, would not be affected by this canon. 
The second ordinance, on the contrary, since it contains a privilege 
which is not personal but applies rather to the clerical order, is 
designed to protect all who have received tonsure, even though 
they be excommunicated or suspended or under interdict. 

From this it is evident that it may sometimes happen that one 
may escape the excommunication fulminated in Article V and yet 
by reason of his crime be affected by the excommunication attached 
to the violation of Article II, as, for instance, would be the case 
with one, who, at the instigation of the devil, would hurl some 
mud at his bishop. 

Again it might be asked, who are affected by this excommunica- 
tion? The answer is simple — all who inflict any injury on the per- 
son, or who interfere with the liberty or dignity of the tonsured 
cleric, in other words all who maltreat those that are protected 
by the two canons in question. 

(a) Those who injure the person; that is those who kill or 
mutilate or strike such persons as are made sacred by holy tonsure. 
Would they be subjected to this penalty who plucked the hairs of a 



bearded priest or bishop? No, for this is not mutilation in the 
proper sense, since the beard is not a member having a function 
distinct from the other parts of the body. 

(b) Those who interfere with the liberty, either by seizing, in- 
carcerating or detaining a cleric. He, however, who seizes such an 
one and yet immediately dismisses him has escaped the condemna^ 
tion of this canon. 

(c) All who with hostile intention pursue or exile the prelate 
or the cleric. So that this censure is incurred by all who pursue 
with such intent even though their wicked purpose is not realized. 
Yet it must be borne in mind that the mere pursuit, say, with inten- 
tion of terrifying, is not sufficient to bring the censure of this 
canon. It must likewise be remembered that to prevent a bishop 
from entering his allotted diocese is not the same as to exile him 
or eject him, and hence the censure is not merited in this instance. 
However, it must likewise be said that the sentence of excom- 
munication contained in Article V falls not only upon those who 
kill or mutilate directly, but in like manner and with equal severity 
upon all who command these deeds, who approve of them, or 
who render help by deed or counsel or reward for the fulfilment 
of the wicked design. 

Lastly, it may be asked, did the mayor of the town and his friend 
Titius, who aided him, fall under the ban of this censure, as con- 
tained in Article V of the Apostolicae Sedis? From one point of 
view it might seem that they did. For, by virtue of the decree of 
the mayor and the hostility of Titius, the bishop was forced to 
leave the episcopal city. Yet, on the other hand, it must not be for- 
gotten that the bishop left of his own free will. Had the mayor 
recalled his decree, even if this were done merely because of the 
uprising of the populace, he would certainly have avoided the 



120 



THE CASUIST— VOL. II 



censure. Hence since the bishop departed of his own free will and 
was not driven out by force, and since the vicar, who was likewise 
a bishop but not residing in his own diocese, did not even leave the 
diocese, we think there is room to doubt as to the incurring of the 
excommunication. Because of this we are inclined to give the 
benefit of the doubt to the mayor and to his friend Titius and pray 
that God may be as merciful to them as we are. 



XXIV. THE DESECRATION OP ALTARS 

Anselm, a priest, having discovered that the cover of the sepulcher 
of the relics in the high altar of his church had been broken into 
two parts, the effect of a heavy blow, though it had not been re- 
moved from its place, asked his bishop to reconsecrate the altar. 
The bishop, however, either because he was enfeebled by age and 
sickness, or because he learned that the altar-slab had two very large 
piercings, gave to the priest a portable altar-slab of almost the 
same dimensions, with which Anselm was directed to replace the 
broken cover. When Anselm found that this was somewhat too 
broad and too deep he cut a little from around its borders, and so 
from both its surfaces diminished a little of its thickness that it 
might fit into the hollow of the altar. 

Now the question is asked : 

i. When and under what circumstances did portable altars first 
come into use, and how does the Latin Church differ from the Greek 
on this subject? 

2. What conditions desecrate a fixed or movable altar, and should 
the fixed altar, in the above case, be considered desecrated? 

3. Does the double piercing mentioned in the above case desecrate 

the altar? 

4. Does the portable altar in the above case lose its consecration? 
Answer 1.— A portable altar from its very name is one that can 

be carried from one place to another. It is opposed to a fixed altar, 
which has a determined place in a church, and is secured to the floor. 
The sepulcher of the relics rests upon a small stone, variously called 
the sacred stone, altar-stone, a carrying stone, traveling altar, por- 
table altar, pilgrimage altar, for the reason that they are chiefly 
used by missionaries and those engaged in traveling and enjoy the 

121 



122 



THE CASUIST— VOL. II 



privilege of a portable altar. This altar should have sufficient space 
to hold at least the chalice and host. As to their first usage the 
well-known Martene writes as follows in his "Ancient Ecclesiastical 
Rites," Part ii, Bk. ii, Chap. 17 : 

"Besides fixed altars, there are others called portable, traveling, or 
pilgrimage altars, the origin of which according to some goes as far 
back as the eighth century. Rather, they date back to the very be- 
ginning of the Church. There can be no doubt that portable altars 
were used before fixed altars, for the reason that in the early days of 
the Church there were no temples, no permanent or fixed places for 
the sacred mysteries, but as Eusebius says, in Bk. 7, Chap. 22, quot- 
ing the words of Dionysius of Alexandria, "Any place at all, a field, 
a forest, a ship, a stable, a prison, a temple, could serve as places for 
the sacred mysteries" and because of this fact it was necessary that 
portable altars be easily carried to any one place. After the persecu- 
tions ceased and wealthy princes built magnificent Basilicas, the 
altars, which up to this period were movable, became fixed, and 
as a result traveling altars became less used. A little later, because 
of the necessity of traveling and the scarcity of fixed and conse- 
crated altars, traveling altars again came into use. Whence Ven. 
Bede says : "Daily they offer to God the sacrifice of the loving Vic- 
tim, carrying with them the little cups and altars each consecrated 
in turn." 

Altars or tables of this kind were made from marble, blockstone, 
porphyry, jasper, alabaster, onyx, crystal, wood, or ebony. They 
were rectangular in form and rested either on wooden tables or 
some more or less expensive foundation. 

According to the present laws of the Church portable altars must 
be made of stone ; they must contain the relics of some saint and be 
consecrated by a bishop. 



THE DESECRATION OF ALTARS 



123 



Among the Greeks instead of traveling altars, Antimensia are 
used. These consist of precious linens containing the holy relics, 
anointed with sacred oil by the blessing of a bishop at a special 
Mass for that purpose. 

In the Russian Orthodox Church a temple can not be consecrated 
unless it contains at least one of these linens. 

In the Syrian Church small tables of wood may be used in place 
of the Antimensia, in case of necessity. 

Anszver 2. — Any altar, whether fixed or movable, is held to be 
desecrated if: 

1. It become broken. Now the break in itself may be serious by 
reason of the size of the fracture or serious by reason of its location, 
even though in itself the break may by no means be considerable. 

2. If the relics have been removed or even if the sepulcher has 
been opened. 

3. If the sepulcher itself has been broken or its cover, or if it has 
only been removed. 

4. If the altar slab has been entirely removed from the lower 
structure. 

5. If the upper part of the altar has been injured. Therefore, 
because of these laws the altar in the above case has been desecrated. 

Answer 3. — It is said in the above case that the altar slab had two 
large piercings. In this case the same conditions obtain that af- 
fect the altar by reason of a break. These conditions we have 
seen in the preceding question. And so I consider that the altar 
has been desecrated. 

Answer 4. — The portable altar given to Anselm, and which was 
mutilated by him in his ignorance, has become desecrated according 
to the above laws, and therefore the priest Anselm dare not cele- 
brate Mass on said altar. 



ARE INFORMAL BETROTHALS BINDING IN CONSCIENCE? 125 



XXV. ARE INFORMAL BETROTHALS BINDING 

IN CONSCIENCE ? 

Of the commentators who affirm this, Heiner expresses himself 
most clearly, and therefore his argument may here be repeated : "As 
every positive promise engenders under natural law an obligation, 
and for this reason is binding in conscience and before God, there 
can be hardly a doubt that even a secret promise to marry is, of its 
own force, binding in conscience. Although, owing to the positive 
law, such a secret promise to marry has no legal operation and can 
not be enforced pro foro externo, this fact changes nothing in the 
consequences which a promise of this kind begets by virtue of its 
existence. The law declares invalid the marriage-promise without 
formal betrothal, not, however, the promise with the intention to 
take upon one's self the obligation to enter a prospective marriage, 
even though this promise is by the legislator declared invalid. In 
conscience one party is bound to keep such a promise to the other, 
and to redeem his promise either by formal betrothal or by mar- 
riage. 

This argument can not be regarded as proving its point. An in- 
formal marriage promise is under the natural law binding, no doubt, 
but so is the informal marriage. And yet the informal marriage is 
without doubt invalid, because "owing to the positive law such 
marriage has no legal operation," it contracts no matrimonial union 
pro foro externo, and begets no marriage rights nor duties what- 
soever, thus depriving the contract of any value it may have by virtue 
of the natural law. The appeal to the natural law proves nothing 
therefore. 

On the contrary we would conclude, and we believe correctly so: 

124 



If in consequence of the Church's legislation, governing the jorum 
externum and internum, there ensues from the repudiation of an 
act, of itself valid according to the natural law, its nullity and inef- 
fectiveness for the jorum internum, there must result, if the Church 
repudiates also the agreement to perform this act, a fortiori also 
nullity and ineffectiveness of the agreement for the forum internum 
That the Church has exercised her authority over betrothals pro 
foro interno is known to every canonist. The bond formed by the 
betrothal is, in and of itself, easily dissolved, even simply by mutual 
consent without any particular reason. It is difficult to believe that 
the words of a certain ecclesiastical law, which in all its other para- 
graphs undoubtedly does bind in the forum internum, should in its 
first paragraph, despite its plain wording, refer merely to the forum 

externum. 

One single ground might seemingly be mentioned in support of 
their claim, but none of the commentators refer to it. The first 
article says : Ea tantum sponsalia HABENTUR valida, while in the 
third article we find : Ea tantum matrimonia valida SUNT. How- 
ever, habentur and sunt are only different terms that have here the 
same meaning, for alone those betrothals made under observance of 
the lawful form are valid, because the Church repudiates the in- 
formal ones, and deprives them of all value and force. If— and in 
this all commentators are unanimous, from an informal betrothal 
not even the fides sponsalitia follows, and therefore a transgression 
against the holy purity does not involve a breach of faith and a 
violation of justice (iustitia commutativa) toward the innocent 
party, then it is difficult to perceive how there can be an obligation in 

conscience. 

The law says : "an informal marriage promise is not a betrothal," 
such an informal betrothal can not therefore be a promise with the 



126 



THE CASUIST— VOL. II 



intention of assuming an obligation, and can not, therefore, be of 
value and binding in conscience. The position of the commentators 
who defend the obligation incurred by informal betrothal does not 
seem consistent. Either they must concede to an informal engage- 
ment all effects pro foro interno, which proceed from the natural 
law, therefore fidelitas and fides (sponsalitia or otherwise) with 
iustitia commutativa and invalidity of a subsequent betrothal stante 
priori — three grave obligations therefore, or they must admit that 
none of the effects, not even the minor obligation of fidelitas, result 
for the forum internum. Vermeersch, in his excellent commentary, 
supports this view. 

Cardinal Gennari refers, moreover, to the introduction of the 
decree, where are set forth the dangers of informal betrothal, as: 
primum quidem incitamenta peccandi causamque, cur inexpertae 
puellae decipiantur, postea dissidia ac lites inextricabiles, and con- 
cludes with good reason that if informal betrothals were binding in 
conscience, all these dangers which the legislator intended to set 
aside would remain, and the legislator obviously can not intend 
this. Finally he cites from Cardinal Gasparri's work (De Matrim,, 
n. 78) a decision of the Congregation for Extraordinary Ecclesiasti- 
cal Affairs. Leo XIII had ordained for so-called Latin America a 
certain written form for the validity Of a betrothal, and to the ques- 
tion whether betrothals without this written form were in those coun- 
tries binding, at least in conscience, the Congregation, on January 5, 
1902, handed down the answer, confirmed by the Pope: Praedicta 
sponsalia pro neutro foro vol ere. 

No confessor has therefore the right to construe any obligation 
whatsoever from an informal betrothal. If a liability is incurred by 
one who has entered an informal betrothal, it can not originate from 
the betrothal (there is no betrothal), but only from some other inci- 



ARE INFORMAL BETROTHALS BINDING IN CONSCIENCE? 127 



dental aspect of the act, for instance the informal betrothal may 
have been a means to deceive, or to lead into sin. 

For this reason it is important to draw the attention of the people 
to the fact that those who are not willing to make the formal declara- 
tion of betrothal are open to suspicion that they have no earnest, no 
honorable intention. The faithful should be enlightened, likewise, 
that formal betrothals are not valid if there is an impediment (except 
the one of forbidden times) and such betrothals become valid only 
upon the removal of the impediment. For that which a person 
can not do valide or licite, he can not either validly promise to do. 






XXVL DELEGATION IN ASSISTING AT BETROTHALS 

Can the parish priest * or the bishop delegate another priest (his 
curate for instance) to assist at a betrothal, or can they have them- 
selves delegated in another parish by the parish priest there? 
Knecht and Heiner affirm this with considerable certainty, and 
Knecht applies to this the rule : Plus semper in se continet quod 
est minus, and, Cui licet quod est plus, licet utique quod est minus. 
The law, however, speaks of delegation only in cases of marriage, 
not of betrothal, and there explicitly circumscribes this faculty, 
therefore all other commentators declare against delegation at 
betrothals, and so has the S. C. C. decided, March 28, 1908. Pro 
praxi no special difficulty is thereby offered. If he is not parish 
priest of the place where the betrothal is made the priest requested to 
assist may simply secure another witness to the act ; then the betrothal 
at all events is valid ceteris paribus. 

Is there a law or precept that betrothal must precede the marriage ? 
To this question we must evidently say no. But if two persons wish 
to become betrothed, they must observe the prescribed form. Other- 
wise a betrothal does not take place, and he who knowingly and by 
omission of the prescribed form merely pretends to become be- 
trothed, commits a deception toward the other party and is answer- 
able in foro externo and interno for the consequences of the decep- 
tion. 

" * According to decisions of the S. C. C. the term parish priest, in the 
sense of the decree Ne temere, does not only refer to pastors in canonically 
erected parishes, but it means, where parishes have not been canonically 
erected, all priests lawfully appointed to exercise the pastorate for fixed 
districts ' the term includes, furthermore, chaplains in Army and Navy, 
within the boundaries of their lawful appointment; furthermore, adminis- 
trators and coadjutors who, for incapacitated pastors, take full charge of 
parishes • of spiritual directors of hospitals and other institutions only those 
who are not subject to a parish priest; and, in missionary territories, every 
priest entrusted by his lawful superior with the charge of a station or district, 

128 



XXVn. "NE TEMERE" AND CATHOLICS OF THE 

ORIENTAL RITE 

In interpreting the new decree Ne temere there has prevailed a 
diversity of opinion as to whether the new decree binds only the 
Catholics of the Latin rite, or also those of the Oriental rite. On 
February 1, 1908, the Cong. S. Concilii has decided that the new 
decree is binding only for Catholics of the Latin rite ; in regard to 
Catholics of other rites their former ecclesiastical law continues in 
force {Acta S. Sedis, 1908, p. 82 et sequ). 

The editor of the Acta S. Sedis comments anent the new decision 
that Latins living among adherents to the Oriental rite must not on 
that account consider themselves exempt from the decree Ne temere. 
The S. Cong, de Propag. Fide is considering the advisability of 
extending the new decree to the non-Latin rites. 



129 



XXVIII. MARRIAGES BETWEEN LATIN AND ORIEN- 
TAL CATHOLICS, OR OF CATHOLICS WITH 
SCHISMATICS (PROTESTANTS)* 

In districts of mixed religions the following marriage cases may 

occur: 

i. One party is Latin Catholic, the other Oriental Catholic. 

The marriage may validly take place either according to the decree 
Ne temere or according to the law to which the Oriental Catholic is 
subject, because the marriage contract is indivisible and for the 
Oriental party applies his or her Church law. This is the opinion of 
the Roman Consultor in Acta S. Sedis, 1908, p. 83. 

2. One party is an Oriental Catholic, the other a schismatic 

(Protestant). 

Neither party is bound by the new decree Ne temere. The Ori- 
ental Catholic is exempted by reason of the decision of the 5. C. 
Concilii of February 1, i9o8f ; the schismatic (Protestant) is as such 
not bound on account of Num. XI, paragraph 3, of the decree 
(Schismatics and Protestants are only involved when marrying a 
Latin Catholic; Par. 2, Num. XI, of the decree, in conjunction with 
the decision of the S. C. Concilii, Feb. 1, 1908). Because of the 
indivisibility of the contract an Oriental Catholic may be validly 
married to a schismatic (Protestant) either according to the Ori- 
ental Catholic, or according to the schismatic (Protestant) Church. 
This follows from the views of the Roman Consultor in Acta S. 

Sedis, 1908, page 83. 

3. One of the parties is a Latin Catholic, the other a schismatic 

(Protestant). 



* See page 137. 



•f See page 129. 
130 



MARRIAGES BETWEEN LATIN AND ORIENTAL CATHOLICS 131 

The marriage, by force of Num. XI, Par. 2, of the decree Ne 
temere can only be validly performed by a (any) Catholic pastor. 
This is the opinion of the Roman Consultor in Acta S. Sedis, 1908, 
p. 85. 



? 



XXIX. PRACTICAL MARRIAGE CASES UNDER THE 

NEW DECREE 

1. A couple resides in Parish A and desires to be married in this 
parish. 

The marriage, in the same manner as heretofore, is announced 
in Parish A and the couple are married by the parish priest* 
of A or by his delegated assistant. The parish priest, furthermore, 
may delegate any other priest to perform the ceremony at A. In 
this normal case, and the most frequent, no change has taken place 
from former usage. 

2. The man lives in Parish A, the bride in Parish B, they wish to 
be married in Parish A. 

The banns are published in A and B, as formerly. The parish 
priest of A may validly and without delegation by the parish priest of 
B perform the ceremony, but according to the new law the ceremony 
should properly take place in the parish of the bride. If a justa 
causa to marry in Parish A prevails, the parish priest of A needs no 
permission by the parish priest of B to make the marriage proper in 
A. If no justa causa is present the parish priest of A must seek the 
permission of the parish priest of B. The parish priest of A can 
then delegate any other priest to perform the ceremony at A. 

Should the couple desire to be married in A by the parish priest 
of B, then, in accordance with the new law, the parish priest 
of B must have himself delegated by the parish priest of A, because 
otherwise he can not perform the ceremony validly outside his 

parish of B. 

3. The man lives in Parish A, the bride in Parish B, they desire 
to have the ceremony performed in C. 

* The scope of the term parish priest is defined on page 128. 

132 






PRACTICAL MARRIAGE CASES UNDER THE NEW DECREE i 3i 

The banns are published in A and B as heretofore. The parish 
priest of C, according to the new ecclesiastical law, requires no dele- 
gation for the valid performance of the ceremony. In order that he 
may perform the ceremony licitly he must have delegation, which 
he may seek from either the parish priest of A, or from the parish 

priest of B. 

If the parish priest of A (the bridegroom's parish priest) wishes 
to perform the ceremony in C, then, in accordance with the new 
law, he would have to be delegated for that purpose by the parish 
priest of C, in order that the marriage should be valid. He requires 
no sanction to make the action licit because he is parochus proprius 
of one of the contracting parties. Of course it is proper to have an 
understanding with the Rector ecclesiae in whose church one wishes 
to perform a liturgical function ; in our case, therefore, the parish 
priest of A should communicate with the parish priest of C. In my 
opinion the parish priest of A does not need delegation by the bride's 
parish priest for the reason that in Num. V, Par. 3, of the decree 
there is only prescribed licentia alterutrius contrahentis; neverthe- 
less it may be claimed in interpretation of this point that the per- 
mission of the bride's parish priest also is requisite in a locality in 
which neither of the contracting parties is resident. If this opinion 
be held then this permission also must be procured by the parish 

priest of C, if they marry in C. 

4. A couple had domicile in Parish A, but left A and settled in 
Parish B, where, three weeks after, they wish to be married. 

In this case, as in all cases of newcomers, the parish priest's (of 
B) first question must be "How long do you intend to stay in B?" 
He asks for the animus manendi, in order that he may determine 
whether the parties have in B a domicile, a quasi-domicile, or neither, 
and in the last case are vagi. The results may be as follows : 



I 



134 



THE CASUIST— VOL. II 



(a) The couple reply: "We intend to stay permanently in B." 
In this case these people have at once acquired a domicilium verum. 
In accordance with the jus commune ecclesiae the banns are then 
published only in B. The parish priest of B may validly and licitly 
perform the ceremony; he requires no delegation or permission by 
the parish priest of A because he is now parochus proprius. 

(b) The couple reply: "We wish to be married here, and then as 
soon as possible remove to C." In this case there is no animus 
manendi perpetuo, therefore no actual domicile. The couple have 
not even a quasi domicilium, because they do not intend to remain 
six months at least (per majorem anni partem). Hence these parties 
are to be viewed as vagi and report is to be made to the Ordinary 

of the diocese. 

5. Man and woman reside in Parish A, they wish to be married 

in Parish B. 

According to the new law the parish priest of B requires no dele- 
gation by the parish priest of A in order to perform the marriage 
ceremony validly, but he does require permission from the parish 
priest of A. 

6. They reside in Parish A, they wish to be married by the parish 
priest of B in Parish C. 

The parish priest of B, according to the new law, must be dele- 
gated by the parish priest of C to render the marriage valid. Further- 
more the permission of the parish priest of A must be secured. 

7. The contracting parties live in Parish A, they wish to be mar- 
ried by the parish priest of B in Parish A. The parish priest of A 
has delegated the parish priest of B, with authority to sub-delegate, 
and departs on a journey. Meantime the couple have changed their 
mind and wish to be married in Parish C by the parish priest of C. 

In order that the marriage should be valid in accordance with the 



PRACTICAL MARRIAGE CASES UNDER THE NEW DECREE 135 

new law, the parish priest of C requires no delegation ; he should, 
however, for the licit performance of the ceremony, secure the per- 
mission of the parish priest of A, but as he is away from home, and 
has demonstrated by delegating the parish priest of B that he has no 
objection, the parish priest of C may perform the marriage cere- 
mony licitly by reason of this permission. A sub-delegation of the 
parish priest of C by the parish priest of B is not necessary. 

8. Bride and groom reside in Parish A, they desire to be married 
in the chapel at B, the ceremony to be performed by a related priest 
who is professor of theology at the seminary in A. 

In accordance with the new decree, the professor, in order to per- 
form the marriage ceremony validly in B, must be delegated by the 
parish priest of B ; in order that the ceremony may also be licit, 
permission of the parish priest of A must be secured either by the 
professor or by the parish priest of B. 

9. The contracting parties reside in Parish A and wish to be mar- 
ried there, the parish priest of B is to perform the ceremony (in A). 
The parish priest of B is accordingly delegated by the parish priest 
of A. The couple, however, change their plans, and are married 
without further ado in B by the parish priest of B. 

The marriage is valid according to ecclesiastical law, no matter 
what interpretation may be correct as to territorial restrictions of the 
delegation, because the parish priest of B functions validly without 
delegation as parish priest of the place. He should, however, have 
applied for the permission of the parish priest of A. It does not 
follow because he had been delegated for A that the parochus pro- 
prius was agreeable to the marriage in B. In this case the parochus 
proprius was not away from home. 

10. A couple reside in parish A, they wish to be married in B. 
The parties being befriended with the parish priest of C wish to be 






136 



THE CASUIST—VOL. II 



married by him in B, provided he does not have to start on a certain 
journey before the marriage. In that case they would like to be 
married by the parish priest of B, in B. Corresponding to the new 
law the parish priest of C must be delegated by the parish priest of 
B in order that the marriage be valid. If he leaves before the 
wedding day and the parish priest of B takes his place, the latter 
requires no delegation for the validity of the marriage because he 
is the parish priest of the place. In either case the permission of the 
parish priest of A must be obtained. 

11. The parish priest of A has no curate. A marriage is approach- 
ing when he is called away from home. In the neighboring Parish 
B there are parish priest and curate. The parish pf^est of A dele- 
gates the parish clergy of B cum jure subdelegandi and departs. 
Soon after the curate of B is assigned to another post, and another 
priest takes his place in B. Upon the arrival of the new curate in 
B the marriage is due to take place in A. 

In accordance with the new law the parish priest of B, by reason 
of the delegation, can validly perform the ceremony in A. But 
what about the new curate ? At the time of the delegation he was 
not yet a member of the parish clergy of B, therefore a persona 
incerta. In my opinion the new curate must be subdelegated by the 
parish priest of B in order to perform the ceremony validly in A. 

Hence in places where many strangers congregate, and where 
delegations are frequent, the date of the delegation is to be closely 
considered if a change of the clergy has taken place. 

Alois Schmoger, D.D. 



XXX. MIXED MARRIAGES UNDER THE NEW 

DECREE* 

In discussing mixed marriages the law that prevailed before 
August 2, 1907, must be considered, because if a conversion of one 
or both parties has taken place after the marriage, the validity of 
the union is to be judged in accordance with the old law if the 
marriage took place before Easter, 1908. 

Those non-Catholics who, according to the decree Ne temere, do 
not need the Catholic form for the validity of their marriage, do not 
even seem to require it for its lawfulness, because it is said in Num. 
XI, Par. 3, of the decree: Nullibi ligantur ad Catholicam matri- 
monii formam. If in the following discussion briefly the presence of 
the Catholic parish priest is demanded, let it be understood that 
there must be also at least two witnesses present. 

(a) Catholics and Protestants (schismatics). 

Under mixed marriages, in the actual and usual meaning, are 
understood unions between Catholics and Pfotestants (schismatics). 
If no impediment prevails and the lawful form was observed, such 
marriage without dispensation is valid, but unlawful. In regard to 
the question whether the Tridentine form (Catholic parish priest and 
two witnesses) was required for valid marriage, there had to be dis- 
tinguished (before the Ne temere) two cases : 

(aa) In Tridentine territory mixed marriages without Catholic 
parish priest and witnesses were invalid. 

(bb) For certain countries, either disputed territory or difficulties 
prevailing, papal decrees had created special conditions ; so, for in- 
stance, for Hungary and Germany. 

(cc) In territories where Tametsi had not been promulgated, or. 



* See also page 13a 



*37 



138 



THE CASUIST— VOL. II 



was not in force, marriages between Catholics and Protestants 
(schismatics) were valid, but unlawful. 

After the decree Ne temere the distinction between Tridentine and 
non-Tridentine territory disappears. The law is now: Marriages 
between Catholics and Protestants (schismatics), in order to be 
valid, must be contracted before a (any) Catholic parish priest (or 
Bishop) and at least two witnesses. Such marriages are still valid 
without this prescribed form in a territory for which the Apostolic 
See has decreed special laws. Hence, for instance, the special law 
referred to remains in force for Germany notwithstanding the new 
law, Num. XI, Par. 2, of the decree of August 2, 1907. 

In accordance with the jus commune ccclesiae, the proper form 
of assisting at mixed marriages by a Catholic parish priest was 
passive assistance, even when dispensation has been obtained. This 
passive assistance has received by the new decree an important 
moderation, which makes requisite for the validity of the marriage 
the requirere of the consent (Num. IV, Par. 3, of the decree). 
Hence in my opinion the passive assistance will hereafter merely 
mean omission of the ceremonies, avoidance of the locus sacer and 
of ecclesiastical vestments. 

(b) Catholics and Apostates. 

Apostasy is the complete abandonment of the Christian faith, 
whether or not there is joined to it the embracing of Judaism, 
paganism or any other form of cult; he also is an apostate who, 
after falling away from Christianity, joins no other community, 
but, without following any particular religion, lives as Deist, Atheist, 
Pantheist, or Free Thinker (Aichner, Compend. Jur. Eccles., 1890, 
p. 774). At all events an apostate can be only one who has been 
validly baptized as Catholic, Protestant, or schismatic Christian. By 
the word apostate is usually understood only one who was a Catho- 



• 



MIXED MARRIAGES UNDER THE NEW DECREE 139 



lie ; but the term would likewise hold good in the case of one who 
left another Christian community. It is erroneous to use the word 
apostate in the instance of a Catholic who embraces Protestantism ; 
the correct term in such a case is heretic. 

Marriages between Catholics and apostates were under the old 
Church law dealt with the same as those between Catholics and 
Protestants. The new decree makes distinction between apostates 
who before their apostasy were Catholics, and those who previously 
were Protestants (schismatics). The marriage between a Catholic 
and an apostate from Catholicism, in order to be valid, must, in 
every case and everywhere, be performed before a Catholic parish 
priest; the form of this marriage is in regard to its validity subject 
to the same requirements as marriages among Catholics (Num. XI, 
Par. 1, of the decree) ; dispensation is necessary for its lawfulness. 

On the other hand a marriage between a Catholic and an apostate 
from Protestantism is governed by the rules for mixed marriages, 
hence in places where such provision has been made by special laws 
of the Church, it can be validly contracted even without a Catholic 
parish priest (Num. XI, Par. 2, of the decree). 

A person originally heretic or schismatic, then converted to the 
Catholic religion, and finally turned apostate, is to be treated like an 
apostate from Catholicism, hence his or her marriage with a Catholic 
is to be dealt with the same as a marriage between Catholics (Num. 
XI, Par. 1, of the decree). Dispensation is referred to above. 

(c) Protestants and Apostates. 

Inquiry into the validity of marriage between Protestants and 
apostates will be in order for the Catholic priest if one, or both, par- 
ties, after the marriage, join the Catholic Church. We omit here 
to take into account the question of validity of a Protestant baptism. 

Marriages between Protestants and apostates were, under former 



140 



THE CASUIST— VOL. II 



rules, treated the same as marriages between heretics (Protestants). 
The decree Ne temere makes, here again, the distinction between 
apostates from Catholicism and such from Protestantism (schism). 
A marriage between a Protestant and an apostate from Catholicism 
is regarded similar to a mixed marriage between Catholics and 
Protestants and to be valid must therefore be performed before a 
Catholic parish priest (except in exempted territories) (Num. XI, 
Par. 2, of the decree). The marriage of a Protestant with an apos- 
tate from Protestantism is valid everywhere without regard to the 
presence of a Catholic parish priest (Num. XI, Par. 3, of the decree). 

(d) Catholics and Jews. 

A marriage between Catholic and Jew does not come, according 
to Canon Law, under the head of a mixed marriage in its technical 
sense, but is classed as a marriage between baptized and unbaptized. 
Without a dispensation not only would such a union be unlawful, 
but even invalid, on account of the impediment disparitatis cultus. 

Before the decree Ne temere it was a mooted point whether or not 
the Tridentine form was requisite for the marriage between Catholic 
and Jew. Many canonists held that, as the Jew was not bound by 
the laws of the Tridentine Council, his or her exemption would be 
shared by the Catholic party to the marriage, and therefore such 
marriage would be valid even without a Catholic priest, provided 
the Church had previously dispensed from the impedimentum dis- 
paritatis cultus. 

By the new law of August 2, 1907, marriages between Catholics 
and Jews are viewed like mixed marriages, therefore the ceremony 
in order to be valid is to be performed before a Catholic parish 
priest (for certain exempted districts exceptions are made) (Num. 
XI, Par. 2, of the decree). 

The manner of performing the ceremony would be, as in mixed 



MIXED MARRIAGES UNDER THE NEW DECREE 141 



marriages and in accordance with the jus commune (regardless of 
the secured dispensation) the passive assistance in its technical 
sense (Acta S. Sedis, 1907, p. 571). Our remarks above, about the 
moderation by the new law of this passive assistance in the case of 
mixed marriages, will also apply here. Commonly there hardly ever 
occur dispensations ante matrimonium in such cases ; they do occur, 
however, for the validation of a civil marriage, or, on the deathbed, 
of a concubinate. 

(e) Protestants and Jews. 

As in other instances of marriages among non-Catholics the ques- 
tion of validity may come up if after the ceremony one or both 
parties enter the Catholic Church. In accordance with the previous 
law a marriage between Jew and Protestant could be validly 
entered, without regard to the Catholic priest, in all those cases 
where the Protestant party was not bound by the Tridentine form. 
But even if the Protestant party was bound, many canonists claim 
that the exempt Jew would impart to the Protestant party his ex- 
emption. 

The decree Ne temere demands for the marriage between Protest- 
ant and Jew in no case and nowhere the presence of a Catholic 
parish priest (Num. s XI, Par. 3, of the decree). 

In facto such marriages will be invalid, nevertheless, because of 
the impediment disparitatis cultus. 

(f) Apostates and Jews. 

An apostate, according to former Canon Law, was treated in 
regard to the form of marriage the same as a heretic (Protestant), 
hence the same regulations, which heretofore governed marriages 
between Protestants and Jews, applied also to alliances between apos- 
tates and Jews. Whether the apostate before his apostasy was 
Catholic or Protestant made no difference according to the old law. 



142 



THE CASUIST— VOL. II 



The new decree makes again a distinction between apostates 
from Catholicism and such from Protestantism. The former can 
be validly married to Jews only before a Catholic parish priest ( ex- 
cept in exempted territories) (Num. XI, Par. 2, of the decree). 
Apostates from Protestantism can, always and everywhere, be 
validly married to Hebrews without a Catholic parish priest (Num. 
XI, Par. 3, of the decree). The impediment of disparitatis cultus 
applies here and hence such marriages are invalid in facto, a dis- 
pensation not having taken place. 

(g) Catholics and Infidels. 

Here is to be ascertained, first of all, whether the infidel party was 
formerly either a Catholic, a Protestant (schismatic), Hebrew, or 
has grown up from childhood without Baptism and religion. The 
previous law treated an infidel who was formerly Catholic or Protest- 
ant in the same way as a heretic, and marriages therefore between 
a Catholic and a baptized infidel were classed with marriages be- 
tween Catholics and Protestants. The infidel formerly a Jew, and 
those from childhood without Baptism and religion, were viewed 
as unbaptized, and to these the same rules applied as in marriages 
between Catholics and Jews. 

The papal decree of August 2, 1907, deals more rigidly with the 
infidel formerly a Catholic than with others. Marriages between 
Catholics and Catholics become infidels are only valid, everywhere, 
when performed before a Catholic parish priest (Num. XI, Par. 1, 
of the decree). The impediments are to be considered. A dispensa- 
tion is necessary for lawful marriage. Catholics and other infidels 
(who were not Catholics) can as a rule only be validly married be- 
fore a Catholic parish priest, special laws for certain localities and 
territories allowing of exceptions (Num. XI, Par. 2, of the decree). 
The impediments are of course not to be overlooked. 



MIXED MARRIAGES UNDER THE NEW DECREE 143 



(h) Protestants and Infidels. 

Before the decree Ne temere an infidel formerly a Catholic was 
viewed in regard to marriage the same as a heretic. Hence in 
regard to the form of marriage, alliances of Protestants with infidels 
who had previously been either Catholic or Protestants were classed 
with marriages among heretics, and to marriages between Protest- 
ants and unbaptized infidels the same rule was applicable as to mar- 
riages between Protestants and Jews. 

The new law discriminates also in this case against the infidel who 
has been a Catholic. A marriage between such an infidel and a 
Protestant can as a rule be validly performed only before a Catholic 
parish priest, but in certain exempt districts and localities the 
validity of such marriage is recognized by Rome also without the 
assistance of a Catholic priest (Num. XI, Par. 3, of the decree). 
The impediment of disparitas cultus between baptized and unbap- 
tized would have to be removed. 

(i) Jews and Infidels. 

In the sense of the old law a marriage between a Jew and an 
infidel who had been Catholic or Protestant, was classed with the 
marriage between Jew and Protestant. The marriage of a Jew 
with an unbaptized infidel was, as a marriage between unbaptized, 
not bound by ecclesiastical law and was valid always and every- 
where without a Catholic priest. 

The new law has again a separate regulation for the infidel for- 
merly a Catholic. Unions between Jews and infidels formerly 
Catholics are valid only when the ceremony is performed before a 
Catholic parish priest (subject to territorial exemptions) (Num. XI, 
Par. 2, of the decree). Jews and infidels other than former Catholics 
can enter into a valid union everywhere without a Catholic priest 
(Num. XI, Par. 3, of the decree). The impediment of disparitas 

cultus is to be removed. 

Alois Schmoger, D.D. 



XXXI. THE VALIDITY OF MARRIAGES AMONG NON- 
CATHOLICS OF THE SAME DENOMINATION 

While the priest has nothing to do with the marriage ceremony 
in such cases, he will have to inquire into the validity of such unions 
if one or both parties after their marriage adopt the Catholic faith. 
For this inquiry he must regard not only the new decree iV* temere, 
but sometimes the previous law. 

If such a marriage was entered before Easter, 1908, its validity is 
to be judged according to the older law. 

When in the following the assistance of a Catholic parish priest 
is required it is to be understood to mean parish priest and at least 

two witnesses. 

1. Marriage among Protestants (schismatics). Before the de- 
cree Ne temere the following distinctions were made : 

(a) In non-Tridentine territories such marriages were undoubt- 
edly valid regardless of the attendance of a Catholic priest. 

(b) For certain districts special laws have been promulgated (so 
for Hungary, Belgium, Holland, Germany), which made such 
marriages valid, but unlawful. 

(c) For Tridentine territory marriages entered by two Protestants 
are variously viewed by canonists, who are not agreed as to whether 
the presence of the Catholic parish priest was necessary for their 
validity or not. The Roman canonists and Congregations declare 
themselves for the necessity of the Tridentine form in the case of 

such marriages. 

The decree Ne temere puts an end to all doubts by deciding that 
marriages among Protestants (schismatics) may after Easter, 1908, 
be validly contracted throughout the world without a Catholic priest. 

144 



THE VALIDITY OF MARRIAGES AMONG NON-CATHOLICS 145 



It no longer seems to require the assistance of a Catholic priest even 
for lawfulness, because it says nullibi ligantur ad catholicam matri- 
monii formam" 

2. Marriages among Jews (unbaptized). 

Ecclesia non judicat de Us, qui foris sunt. Jews who marry Jews 
were bound invariably by the jus naturae and divinum only, and 
never by Canon Law. Hence at no time Jews and unbaptized were 
bound by the Tridentine form of marriage, not even in Tridentine 
territory. Also under the new decree they marry validly and law- 
fully without parish priest and two witnesses (Num. XI, Par. 3, of 
the decree). Heathens, Mohammedans, in brief all unbaptized are 
in reference to the marriage laws classed with Jews. 

3. Marriages among apostates. 

Apostates are former Catholics or Protestants (schismatics) who 
have renounced their Christian faith; whether they have embraced 
another form of religion, or whether they live as free thinkers, is 
immaterial for the technical appellation. According to the former 
law apostates (without distinction as to whether they had formerly 
been Catholics or Protestants) were considered by the marriage 
laws the same as heretics. Therefore marriages of apostates were 
subject to the (above mentioned) regulations concerning marriages 
among Protestants. A distinction was made between Tridentine and 
non-Tridentine territory. 

The new law is toward former Catholics more severe than toward 
apostate Protestants. If two apostate Catholics marry, their mar- 
riage can everywhere only be validly contracted before a Catholic 
parish priest (Num. XI, Par. 1, of the decree). If two apostate 
Protestants enter into matrimony the union is valid and lawful with- 
out a Catholic priest (Num. XI, Par. 3, of the decree). Should an 
apostate Catholic desire to wed an apostate Protestant, then as a 



146 



THE CASUIST— VOL. II 



rule a valid ceremony can take place only before a Catholic priest ; 
exception being made only for exempted places (Num. XI, Par. 2, 
of the decree). 

What if such persons present themselves before a Catholic parish 
priest to be married? What is he to do? The impediment of 
religio mixta is not present, for in that regard both parties are 
regarded as heretics. Neither is there the impedimentum dispari- 
tatis cultus. The ratio dubitandi is in this case really only, (a) the 
excommunication, of the candidates for Matrimony, preventing the 
reception of a Sacrament of the living, and, (b) the co-operation 
of the priest at an unlawful wedding of this kind. Hence the priest 
will endeavor first of all to reclaim the apostate persons for the true 
religion, that they may be absolved from the censure. Should this 
be futile, then he must lay the case before his Bishop. Pope Pius 
VI in a similar case gives to the ordinary instructions to apply to 
Rome (Aichner, Comp. Jur. EccL, 1890, p. 666, nota 28). The case 
is really analogous to the marrying of impenitent candidates whom 
the priest tries in vain to bring to a proper frame of mind. Hence 
the Bishop could in my opinion, in an urgent case, even give of his 
own authority the decision warranted by the circumstances. 

4. Marriages among infidels. 

Three kinds of infidels may here be distinguished: Those who 
formerly were Catholics, those who were Protestants (schismatics), 
and, former Jews or persons from childhood without Baptism and 

religion. 

If both infidel parties are former Catholics, their marriage before 
the decree Ne temere was regarded the same as the union of two 
Protestants ; the new law regards the marriage only as valid, every- 
where, if performed before a Catholic priest (Num. XI, Par. 1, of 
the decree). When two infidels, former Protestants, marry, the 



THE VALIDITY OF MARRIAGES AMONG NON-CATHOLICS 147 

old law likewise regarded them the same as Protestants. Corre- 
sponding to the new decree they can validly and lawfully marry 
everywhere without a Catholic priest (Num. XI, Par. 3, of the 

decree). 

Two unbaptized infidels could formerly, and can now, be validly 
and lawfully married without a Catholic priest (Num. XI, Par. 3, of 

the decree). 

An infidel who has been a Catholic, married to an infidel formerly 
a Protestant, are according to the older law regarded the same as 
Protestants. Under the decree Ne temere they can only be validly 
married before a Catholic priest, except in exempted places (Num. 
XI Par 2, of the decree). The impediment of religio mixta is not 
present here because both are regarded as heretics ; neither of course 
the impediment disparitatis cultus. 

If a former Catholic, now infidel, wishes to wed an unbaptized 
infidel party, the former Canon Law regarded it the same as a 
marriage between Protestant and Jew. The new law requires for 
the validity of the ceremony that it shall take place before a Catholic 
parish priest except in exempted places (Num. XI, Par. 2, of the 
decree). In this case the impediment disparitatis cultus is not to be 

overlooked. 

The marriage between an infidel, former Protestant, and an un- 
baptized infidel was by the older rule regarded the same as a mar- 
riage between Protestant and Jew. The new decree allows their 
union as valid everywhere without a Catholic parish priest (Num. 
XI, Par. 3, of the decree), provided the impediment of disparitas 
cultus has been removed. 

Should infidels who formerly were Catholics or Protestants come 
to a Catholic parish priest to be married, our remarks above, under 
marriages of apostates, about such a contingency would also apply 
in this case. Alois Schmoger, D.D. 



XXXII. MARRIAGE IN DANGER OF DEATH 

The Roman decree Ne temere, of August 2, 1907, brings about a 
moderation in the form of the marriage consent declared in immi- 
nente mortis periculo (Num. VII, of the decree). The term death- 
bed marriage would no longer cover such a case. The decree does 
not speak of dangerously ill, such as, for instance, is the require- 
ment for Extreme Unction. Periculum mortis may be present even 
without illness, in the case of those, for example, who are con- 
demned to death, of soldiers before battle, of shipwrecked, in time 
of persecution when Catholics are threatened with death. 

Before the decree Ne temere, Canon Law knew of no universally 
valid moderation of the Tridentine form prescribed in danger of 
death. Even in periculo mortis a marriage was only valid if con- 
tracted before the parochus proprius and at least two witnesses. On 
February 20, 1888, however, exception was made by Pope Leo XIII 
for aegroti (not therefore for shipwrecked, etc.), in danger of 
death, if there was no longer time to apply to Rome, but only in 
these two instances, namely: 1. In the event of a civil marriage, and 
2. In the case of concubinage. For other cases (the case, for 
instance, of Tepairing the reputation of a woman with whom the 
man now in danger of death does not live) the exemption does not 
apply. In these two cases, then, the diocesan ordinary can dispense 
from all impediments to marriage (excepto prebyteratus Or dine et 
affinitate lineae rectae ex copula licita proveniente) ; with faculty to 
delegate a parish priest, an assistant or other priest. According to 
the decision of the S. Cong. Officii, of December 13, 1899, the ordi- 
nary on the strength of these exceptions can dispense even from the 
impediment of clandestinity (Acta S. Sed., 1899-1900, p. 500; 1907, 

148 



MARRIAGE IN DANGER OF DEATH 



149 



pp. 546 and 547). Thus the ordinary is empowered in such cases to 
dispense through any priest to the effect that a couple may be validly 
married without the presence of parish priest and witnesses. This 
decree of Leo XIII is not superseded by the decree Ne temere, 
because Num. VII of the new decree of Pius X is a lex generalis, 
but the decree of Leo XIII a lex specialis. Lex generalis non 
derogat speciali. Other exemptions from the form of marriage con- 
sent in danger of death did not exist before Easter, 1908. 

The new decree of Pius X effected, after Easter 1908, a uni- 
versally valid moderation in the form of marriage in danger of 
death, in so far as the marriage is valid and lawful if it takes place 
before any (Catholic) priest and two witnesses. Thus the parish 
priest of the domicile (parochus proprius), or the parish priest of 
the place where the marriage is entered, are not required to assist, 
not even a parish priest. Any priest, may he be curate, chaplain, 
professor of theology, spiritual director, etc., may perform such a 
marriage ceremony validly and lawfully. Without witnesses, how- 
ever, the priest alone assisting, the marriage would be both invalid 
and unlawful; it would be so also before two witnesses without a 
priest. That witnesses are required absolutely and invariably is 
wisely ordained by the Church, as in such cases, with publicity ex- 
cluded, a partly unconscious, dying patient might often, and for very 
questionable reasons, be hurriedly married to some one (Acta S. 
Sed., 1907, p. 573). Furthermore the precept is calculated to pro- 
tect the priest against charges of unbecoming conduct, or of undue 
influence. Witnesses are easily obtainable, the nurses for instance. 
The provision that any priest may be chosen is no doubt made 
because such a marriage may be resolved upon when a priest is 
there to administer the last Sacraments, during a sick call of the 
, priest, on occasion of a visit by a befriended priest, or in an emer- 



Si 



1 S° 



THE CASUIST— VOL. II 



gency case in hospital or prison when the chaplain but not the parish 

priest is within call, etc. 

In order, however, that such a marriage in danger of death be 
valid and lawful the following conditions are provided : 

i. There must be lack of time to apply for delegation to the 
ordinary or to the parish priest, or to summon them or a delegated 
priest (the curate for instance) . If time permits of securing dele- 
gation from the ordinary, or to summon the parish priest or his 
delegate, then such a marriage performed by another priest would 
be invalid and unlawful. 

2. The ceremony must be desired to set at peace the conscience 
(ad consulendum conscientiae) and (if there are pre-nuptial chil- 
dren) to legitimize the children. Ad consulendum conscientiae 
will apply usually in cases of civil marriage or of concubinage. 
Unfortunately it is not stated in the decree whose conscience may be 
appeased. Does it apply only to the conscience of the dying person 
(or one in danger), or has a priest the right to proceed if it is only 
a question of the peace of conscience of the (healthy) mistress of 
one in danger, or the peace of conscience of respectable parents who 
urge to have matters settled ? The peace of conscience referred to 
is probably that of the dying, or one in danger, because the approach- 
ing step into eternity makes him fearful and he has not much time 
to put things in order ; the other persons are only threatened in their 
reputation or material welfare. The decree manifests solicitude for 
the children, not for other relatives. The danger of financial loss 
or impairment of honor is not mentioned in the decree as sufficient 
reason for a facilitation of the marriage form. 

Regard for peace of conscience, and therewith the validity and 
lawfulness of the facilitated form are absent, if the one in danger is 
not disposed to contrition or penance (an irreligious person for 



MARRIAGE IN DANGER OF DEATH 



iSi 



instance whose conscience does not much trouble him) : In such case 
the marriage could not take place before a casual priest unless it 
were for the legitimizing of children. When it is only a question of 
legitimizing children, but not of appeasing the conscience of the 
one in danger, one might doubt according to the strict wording of 
the decree whether a casual priest could perform the ceremony, be- 
cause it says ad consulendum conscientiae ET (not vel) prolis 
legitimations In my opinion the et has here, as in frequent other 
instances, the same meaning as vel, because it would not be just to 
let the children suffer for the father's indifference, and the decree 
manifests special solicitude for the children. What is to be done 
when concern is had only for a legacy, material advantage, reputa- 
tion of the persons not in danger, or in a case of insistence by rela- 
tives, in brief, when the purpose has nothing in common with peace 
of conscience or the legitimizing of children? In such cases it 
would seem that a casual priest cannot validly and lawfully perform 
the ceremony. Solicitude for peace of conscience will not be a 
valid reason, either, when the case is one of an existing marriage, 
which is invalid on account of a secret impediment, if this fact is not 
known to the one in danger and can not be communicated to him (in 
which case the children are legitimate). Ad consulendum conscien- 
tiae would, furthermore, not furnish a valid reason if the one in 
danger by means of the facilitated form simply wished to hurry the 
matter unnecessarily, or, on account of personal antipathy, did not 
wish to be married by the parish priest or his assistant, or for any 
other similar unworthy reason. 

The new decree does not exclusively mention the two cases: 
Validation of a civil marriage or of a concubinage. Other cases 
may be presumed, in which a dying person (one in danger) wishes 
to set his conscience at rest by a marriage, for instance a person feels 



*5 2 



THE CASUIST— VOL. II 



impelled by conscience (in consequence perhaps of an admonition 
by the Confessarius) to marry the person whom he has seduced, 
from whom he lives apart and who has borne him no children; or 
he has become engaged honorably and wishes to carry out his 
promise on his deathbed, or the one in danger wishes to make a 
certain restitution by marrying. 

In the decree Ne tetnere it is not required that the marriage in the 
facilitated form, in cases of danger of death, must be performed 
secretly, i. e., with two confidential witnesses and excluding all pub- 
licity. Secrecy or publicity is left to the priest's good judgment. 

Of marriage banns in such cases the decree makes no mention. 
If, in so urgent a case, the priest had to apply first of all for dispensa- 
tion, the facilitated form would become illusory, because parish 
priest or assistant might just as quickly be summoned, or a delega- 
tion from the ordinary obtained. 

The regulations concerning the marriage in danger of death find 
application also in cases of mixed marriages (Catholics and Protest* 
ants), or of marriages of apostate Catholics. In these cases the 
stipulation concerning the Catholic education of the children must 
not be overlooked (Num. XI, Par. i and 2, of the decree). 

If the decree of Leo XIII, of February 29, 1888, is still in force, 
along with the decree of Pius X, of August 2, 1907, what distinc- 
tion is to be made in corresponding cases? 

The distinction is as follows: 

1. The decree of Pius X is a universal one and applicable for 
every kind of danger of death, therefore, for instance, also for ship- 
wrecked and for criminals sentenced to death ; that of Leo XIII is a 
special one and applicable only to the sick. 

2. Pius X decrees regardless of impediments ; Leo XIII refers to 



MARRIAGE IN DANGER OF DEATH 



153 



cases in which an impediment is present and a dispensation neces- 
sary. 

3. Leo XIII decreed only for the legalizing of a civil marriage 
or a concubinage (therefore, for instance, not including the case of 
one who wishes to marry a seduced person living apart from him) ; 
the decree of Pius X has for its general purpose the appeasing of 
the conscience and legitimizing of children. 

4. Leo XIII speaks of gravissimum mortis periculum; the decree 
of Pius X is less restricted and ordains for imminente mortis peri- 

culo. 

5. Leo XIII makes it a condition that there is not sufficient time 
to apply to Rome ; Pius X requires only that, if possible, the ordi- 
nary or parish priest be summoned. 

6. Leo XIII renders possible (by dispensation from the impedi- 
ment of clandestinity) a marriage even without priest and without 
witnesses; Pius X prescribes for the validity and lawfulness at 
least a priest and two witnesses. 

7. In order that a priest may avail himself of the decree of Leo 
XIII (to grant dispensation) he must be delegated by the ordinary ; 
in order to assist at the marriage according to the new decree of 
Pius X no episcopal authorization is necessary, because just 
those cases are intended in which there is no time to apply for dele- 
gation. Therefore, if in a marriage in danger of death an impedi- 
ment to marriage were present (for example relationship), then 
both decrees are applicable : The casual priest must apply to the ordi- 
nary for a dispensation from the impediment, otherwise the mar- 
riage would be invalid on account of the existing obstacle; and the 
local parish priest must be beyond reach, otherwise the marriage 
would be invalid on account of the form (unless the priest, to whom 



1 54 



THE CASUIST-VOL. II 



is granted the faculty of dispensation, is by the ordinary at the same 
time delegated to perform the marriage). 

A Roman Consultor of the Cong. S. Concilii remarks in his opin- 
ion on the new decree : "Haec matrimonii celebratio in extremis non 
videtur absolute requiri ad salutem" {Acta S. Sed., 1907, p. 574) . 
The decree itself does not say matrimonium contrahi DEBET, but 

POTEST. 

Alois Schmoger, D.D. 



XXXIII. MARRIAGES IN CASES OF EMERGENCY 

In cases of emergency, as distinguished from cases in danger of 
death, the life of either of the candidates for a marriage is not in 
danger. The emergency is found in the general impossibility in a 
certain district, province, or country, to have the marriage per- 
formed by a parish priest. 

Even before the decree Ne temere (of August 2, 1907), various 
Roman decisions, and interpretations of canonists, had occupied 
themselves with the question as to what was to be done in a case 
when the parochus proprius could not be had to perform a marriage 
ceremony (Gasparri, De Matrim., 1893, II, n. 965 et sequ.; Santi, 
Praelect. Juris. Con., 1886, lib. IV, tit. Ill, n. 47 et 48; Aichner, 
Compend. Jur. Eccles., 1890, p. 661). 
The following rules had been adopted : 

1. If the Catholic parish priest is not obtainable for the marriage 
ceremony the parties can give their consent validly and lawfully 
before two witnesses (without parish priest, even without any 
priest), provided, 1. That the emergency must be a universal one 
(namely for the whole region, not a personal only for the couple). 
The emergency does not have to be a physical one, a moral one 
suffices. The latter would be the case, if the parish priest can only 
be had difficillime and periculosissime (not difficile or periculose) ; 
so Pius VI to the Bishop of Geneva, October 25, 1793. Circumstances 
like the presence of an impediment, or the personal infirmity of one 
of the contracting parties, do not constitute of themselves cases of 
emergency ; nor the fact that one or more parish priests refuse to 

assist. 
2. This emergency must be expected to last at least for a month 

155 



*5« 



THE CASUIST— VOL. II 



\ 



! 






so that the couple would have to postpone their marriage for a 
month at least (not merely for a few days or weeks). 

3. That the parochus proprius or his delegate (curate or assist- 
ant) is not to be had. 

4. Also the delegation (even by letter) of another priest by the 
ordinary is not possible. 

All these four conditions must prevail together, not merely one or 
the other. If, for instance, in cases of emergency the delegation of 
a priest by the bishop is possible, then the couple can not be married 
merely before two witnesses and without a priest. 

Even if in such cases a civil marriage, or a marriage before a 
Protestant minister are possible, Catholics can nevertheless marry 
validly and lawfully before merely two witnesses (without an of- 
ficial or clergyman), because the Catholic Church attributes no sacra- 
mental effect to the two forms mentioned. A declaration of consent 
merely between man and woman without witnesses would even in 
case of emergency be invalid and unlawful. Witnesses must be 
present. A case where no witnesses can be had is hardly possible, 
because even seven-year-old children, or women, or relatives, even 
the unbaptized, etc., may be valid witnesses. 

In such a case of emergency a publication of the banns is of course 
out of the question. 

The decree Ne temere, in Num. VIII, has simply assembled the 
law as expressed in the different Roman decisions and interpreta- 
tions by canonists. But three new conditions have been added, 
namely : 

1. The case of emergency is now present only when no Catholic 
parish priest can be had (formerly parochus proprius). 

2. The contracting parties must formally declare their consent 
(formalis consensus) ; a tacit consent does not suffice. The declara- 



MARRIAGES IN CASES OF EMERGENCY 



157 



tion no doubt can take place not only by words, but also by signs, 
otherwise deaf mutes or the dumb could not marry. 

3. The emergency must at least have lasted a month {conditio a 
mense jam perseveret). These rules apply also to mixed marriages 
and marriages with apostates (Num. XI, Par. 1 and 2, of the de- 
cree). 

Kindred cases of emergency may occur in times of persecution, 
or in a Kulturkampf, in times of war ; in widely extended missionary 
districts, etc. 

Alois Schmoger, D.D. 






XXXIV. ARSON AND RESTITUTION 

Catharine, the wife of Andrew, set fire to their house, unknown 
to Andrew. When the latter learned of the true state of affairs he 
did collect the insurance of $1,000, but threw the money down before 
his wife, saying angrily : "Here, take this unrighteous money if you 
will. I want none of it." Andrew troubled himself no further about 
this money, and Catharine died several years after, fortified by the 
last Sacraments. Some years after Andrew also falls ill. The 
incendiary fire and the money collected, for the use of which he 
can not account, weigh heavily upon his conscience. Part of the 
amount he can refund, but not the entire sum, without interfering 
with his children's yet unfinished education and without rendering 
impossible their further study for the professions. Is he obliged 
to make restitution, and of the whole sum, or may he presume 
that his late wife put the affair in order ? 

Answer. The money taken by Andrew belonged to others, and 
was not his due, because the fire insurance companies do not agree 
to pay damages directly caused by the insured, or by his wife, or 
by his near relative. All rightful claim to insurance money is 
absent, also in conscience, if malevolence, or grievous theological 

guilt, has caused the fire. 

To the money accepted by Andrew adheres, therefore, the obliga- 
tion of restitution. Although Andrew, in order to protect himself 
and his wife from the greater evil of public dishonor and against 
severe punishment by the authorities, was allowed to take the money, 
he could only do so with the intention of refunding the money as 
soon as possible to its rightful owner. The basis and extent of the 
obligation to make restitution is in general, and can only be for 

*S* 



ARSON AND RESTITUTION 



iS9 



Andrew, 1. Unlawful injurious action, or 2. Unlawful acquisition 
of another's property. It is evident that both these conditions ex- 
isted in regard to Catharine. But here it is not a question of 
Catharine's obligation to make restitution, but of Andrew's, and in 
this regard the answer will vary according to the circumstances, 
which have to be ascertained. We have to decide the case on the 
following suppositions : 

1. First of all let us suppose that the money was applied for the 
benefit of Andrew's family; in such case it is incumbent upon 
Andrew to refund the money, because he has been unlawfully en- 
riched by it, as it went to pay expenditures which otherwise would 
have had to come out of his own income. 

The obligation of restitution would, furthermore, be Andrew's, no 
matter how the money had been used, if he, with grave theological 
guilt, has put the money in other hands than the owner's, with the 
knowledge that Catharine would not make the restitution. 

Should one or the other of these suppositions be a fact, then the 
obligation of restitution rests, or rested, upon Andrew. We say 
the obligation rests or rested, for there is a possibility that it no 
longer rests with him, because, at least in part, restitution may have 
been made already. In order to decide this we must first consider 
the question : To whom must the money be refunded ? Compare in 
this connection the author's Theologia M oralis, ed. 9, a. I, n. 1134. 
It is a practical probability that not the shareholders of insurance 
companies, but rather the great number who insure with them their 
belongings, by payment of yearly premiums, are the actual sufferers, 
because the companies include in their calculation of premiums the 
average cases of arson which yearly take place. From this follows 
the further practical probability that, instead of to the great number 
of insured, the restitution may, as a rule, be made to the poor or to 



i6o 



THE CASUIST— VOL. II 



some charity; for where the amount to be refunded would be 
divided among so large a number, especially if the individuals are 
not all known, and the individuals have not been injured in a grave 
materia, then, according to the general opinion of theologians, the 
restitution can for prudent reasons be made to the poor or to some 
charitable purpose, because on the one hand we may presume this 
to be the reasonable will of the insured, and because on the other 
hand the poor and the public charities are that part of human society, 
to whom the superfluity of temporal goods, or the portion of no 
avail to the actual owner, is due (Compare Liguori, I. 3, n. 589 

and 595). 

If restitution to the poor, or to some charity, is lawful in Andrew's 
case, it follows that Andrew, by alms and other donations made by 
him since the incendiary fire, or rather since collecting the insurance 
money, has already refunded part of this money. 

This is the first ground to reduce the amount which Andrew is 

obliged to refund. 

A second ground for a reduction may perhaps be found in An- 
drew's circumstances, which make the money needful for the further 
education of his children. If one of them has chosen the priesthood 
for his vocation, or some other calling similarly to the welfare of 
mankind, the furnishing of the means for such vocation, and for 
the preparation therefor, is a pious purpose, such as we have said 
can, in our case, take the place of restitution to the creditors. Al- 
though it is advisable that of a debt arising from an obligation of 
restitution the entire sum should not remain in the debtor's family, 
on the claim of poverty or causa pia, but that an outside causa pia 
should be preferred, yet under such title at least a considerable por- 
tion of the money may remain in the debtor's possession. , / 

For these reasons alone, the money still to be made good, even if 

I 



ARSON AND RESTITUTION 



161 



Catharine has not made restitution and if Andrew is a culpable ac- 
cessory, may be reduced to at least one-half, and in case of need to 

less. 

II. It is, however, quite possible that our supposition, of An- 
drew's theological guilt and of the expenditure of the money for 
the benefit of the family, is not a fact. One would suppose that it 
could not have escaped the husband's notice if the money had been 
really expended for the family or for household needs. There is 
of course the possibility that the wife alone had these matters in 
hand/the husband having relinquished his control over them. Then 
the matter would remain in doubt. A circumstance seemingly in 
favor of the opinion that restitution had been made — or an applica- 
tion of the money equal to restitution — is that Catharine died forti- 
fied with the last Sacraments, and had said nothing before her death 
to her husband of being burdened with the duty of restitution. A 
difficulty to do this was not present in this case, Andrew being aware 
of the wife's act upon which the obligation of restitution rested. 
Still there is no certainty, and a mere possibility could hardly suffice 
for a complete exoneration of Andrew. Yet it will be permissible 
for this reason to make a still further reduction of the obligation 
and of the sum to be refunded, in the supposition of Andrew's 

theological guilt. 

In conclusion it remains to inquire about Andrew's theological 
guilt or non-guilt. We have remarked above that no theological 
guilt can attach to Andrew because he took the money; he was com- 
pelled to do so to prevent greater evil to himself and to his wife. 
There would have ensued the theological sin of injustice had he 
appropriated the money as his own property. That this evidently 
was not his intention, is shown by his action directly afterward, 
when he declared he would have none of it. Of course, having 



162 



THE CASUIST— VOL. II 



received the property of another— having, as it were, taken it in his 
keeping — there devolved upon him, viewed objectively, the obliga- 
tion to care for its rightful use. This he neglected to do, having 
left the matter to his wife and to her conscience. Nevertheless there 
is no proof that Andrew saw a grievous fault therein, or that he was 
conscious of his responsibility for the use of the money. If An- 
drew had not much judgment in matters of law he may have be- 
lieved that he had thrown off all responsibility when he delivered the 
money to the one who in the first place bore both the guilt and the 
obligation to make restitution. Andrew's conscience should there- 
fore be examined. If his bona fides is proved, then he is to be 
absolved from all obligation of restitution, unless it is proved that 
the money was applied for the family's use; in the case of mala 
fides, or, if it is shown that the money was used for the family, 
restitution would have to be made, but in the reduced degree as 

explained above. 

Aug. Lehmkuhl, S.J. 



XXXV. MARRIAGE BY COMPULSION 



Illicit relations with Caius, a gentleman of high standing, have 
not remained without consequences for Amelia. For the sake of 
his own reputation Caius urges Amelia to marry Brutus, for whom 
she does not care ; eventually, however, she does marry Brutus. Is 
this marriage valid? What grounds are there for and against its 
validity ? 

In this case the question arises whether the impediment of com- 
pulsion invalidates this marriage. To answer this is not an easy 
matter, owing to the lack of an exact account of the circumstances. 
First of all we must presume that Amelia gave actual consent. 
Should her aversion for Brutus have moved her to give only pre- 
tended consent at the marriage, no doubt could exist that the 
marriage is invalid. We presume then that she gave her consent ; it 
was, however, induced by fear. Now Impedimentum Metus invali- 
dates the marriage if the fear is great^ unjust, and caused for the 
purpose of entering the marriage. By unjust it is understood that 
it must have been occasioned by another person. For the fear that 
arises only from one's inner self, ab intrinseco, does not make a con- 
tract invalid, so long as there exists sufficient deliberation. Ab 
intrinseco is the fear that proceeds from the matter itself, and not 
from the person who threatens. D'Annibale, I, n. 138, well expresses 
it thus : "Diciter ab intrinseco, cum res ipsa metum facit; ab extrin- 
seco: cum alius infert metum ad consensum extorquendum." Hence 
not only is the fear, of an illness, the symptoms of which we observe 
in ourselves, ab intrinseco, but also the fear of infection, the fear of 
a thunderstorm, of a storm at sea, of hell-fire, etc. Fear such as 
this may move us to do things which we do not like to do, never- 

163 



164 



THE CASUIST— VOL. II 



theless it leaves our power of determination quite intact, we do 
something, and will to do it, although with an effort. If, however, 
the fear is due to the threat of another person, then a certain ex- 
terior compulsion is present, which, though it leaves us freedom of 
will and deliberation, induces an action which is not so much dictated 
by our will as by the pressure upon us. Hence Alexander II says, 
in De Sponsalibus: "Cum locum non habet consensus, ubi metus vel 
coactiq intercedit, necesse est, ut ubi consensus cujusdam requiritur, 
coactionis materia repellatur" When, however, there is metus ab 
intrinseco, then he decides for the validity of the act, for instance, 
De Regularibus, c. 17. 

Hence it is evident that the impedimentum metus imposed by the 
Church applies only to the fear of a threat if it is unjust, 1. If no 
just claim exists for the marriage, and 2. If the evil threatened can 
not justly be inflicted. Therefore if a bride forces her tardy be- 
trothed, by threats of legal action, to marry her, she is justified in so 
doing; also if a judge gives the seducer of a young girl the choice 
to marry her, or to go to prison, the resulting fear is just, and does 
not, therefore, render the induced consent invalid. 

Let us now solve our present casus. A marriage between Amelia 
and Caius apparently is out of the question, either because of in- 
equality of station or because Caius is already a married man 
(there is no mention of social injury resulting for Amelia from her 
relations with Caius). Therefore a love for Caius is not the reason 
for her aversion to Brutus. Caius urges or, as is understood here, 
compels, Amelia to a hasty marriage with Brutus, but by what 
means? If he only points out to her the disgrace that will befall 
him and her, and if Amelia is thus induced to marriage, there would 
be no impedimentum metus — such fear would be ab intrinseco. 
Should he, however, threaten to do her harm, or to disgrace her, 



MARRIAGE BY COMPULSION 



165 



then there would be the impediment of fear ; the fear being great, 
unjust, and compelling to marriage. 
We may suppose the case to be practically as follows : 
Caius has a large household in which Amelia is servant, and like- 
wise Brutus. Brutus, though knowing of her condition, is willing to 
marry Amelia, out of regard for his master and for his own benefit, 
but Amelia does not want him. The master threatens dismissal and 
withdrawal of support. Amelia sees a hard future before her, and 
in order to escape this hardship, she gives her consent. Under these 
circumstances the impediment of fear would be present. 

There is a considerable misfortune threatened unjustly, because 
Caius should justly provide for the expected infant, and the purpose 
of the threat is to induce marriage. Should the master, however, be 
willing to do in any case his duty in regard to Amelia, and only 
threaten to discontinue his special generosity, then there would be no 
injustice (in the particular threat) and therefore no impediment. 

The confessor should, therefore, closely question Amelia without 
saying anything about an invalidity of the marriage. Should he 
find that the impedimentum is undoubtedly present, he should mean- 
while not disturb the bona fides, but examine into the whole situa- 
tion as to whether an agreement between' Amelia and Brutus can 
not be induced. If Amelia can be moved to consent actually, Brutus 
being still agreeable, nothing further is required, because the causa 
metus is then certainly removed. But if Amelia of her own will 
insist upon a separation, the confessor must refer her to the bishop, 
because then the whole case belongs to the forum externum. 

In this solution Brutus' previous knowledge of Amelia's con- 
dition is presupposed; otherwise we should have to discuss the 
wrong that Caius and Amelia inflicted upon him. 

W. Stentrup, S.J. 






XXXVI. NULLITY OF A MARRIAGE OWING TO NON- 
FULFILMENT OF AN IMPOSED CONDITION 

Silvia, when receiving the last Sacraments, confesses that in her 
younger days she had unlawful relations with her present husband 
Claudius, but also with one Ignotus, and that her relations with the 
latter had not been without consequences. A marriage with Claudius 
offering better prospects she led him to believe that he was re- 
sponsible for her condition. Accordingly, on this condition, he mar- 
ried her, she declaring that he was the parent of the expected child. 
They have been married for many years, and more children have 
been born to them. The child conceived before the marriage is also 
living. 

How about the validity of this marriage ? 

There can be no impedimentum erroris. According to Canon Law 
such error is essential only which excludes the necessary consent 
jure divino (the error conditionis servilis forms an exception) — this 
would apply in the case of an error of person. The error of person, 
an error of identity, however, annuls the consent, only under cer- 
tain suppositions ; the intention must be absent. The error in quality, 
though always accompanying the error of identity, differs essentially 
from it, and does not take away the validity of the contract, not 
even if the quality about which there is error is of decisive influence 
upon the resolution to consent; the consent is not excluded. The 
important so-called error qualitatis in personam redundans is not 
merely an error in quality, but a special kind of error in person. 

The error in our case is merely an error in quality — Claudius erred 
concerning the paternity of the child — though the error influenced 
his resolution. 

166 






* 



NULLITY OF A MARRIAGE 



167 



The marriage is therefore not invalid because of error. Let us 
inquire whether it is invalid by reason of non-fulfilment of a stipu- 
lated condition. 

What is understood by a condition ? A condition is that which is 
requisite that something else should take effect. It is apparent 
from the definition of condition, that, if the condition is not ful- 
filled, the contract is not intended and therefore not valid, ex jure 

naturali. 

The question is then whether we are dealing in this case with a 
condition that would abolish the consent, and therewith the validity 
of the marriage. We are informed that : Claudius married Silvia 
upon the condition, claimed by her, that he was the parent of her 

expected child. 

Was this a real condition? Did Claudius intend to make the 
validity of the marriage dependent upon the fact of his paternity, 

or not? _ 

On the answer to this question the confessor would have to lay 
stress in his inquiry into the facts. If Claudius made it an actual 
condition, then the marriage is invalid, even in the case that the 
condition was not made in the form prescribed by Canon Law, i. e., 
not explicitly stated before parish priest and witnesses. The neglect 
of this formality does not make an in jure naturali void marriage a 
valid one, it only forfeits to the one who imposed the condition the 
right to claim it in foro externo. 

As regards the re-validation of a marriage invalid on account of 
lack of consent, such does not take place eo ipso by reason of a long 
cohabitation with the other party. There is necessary an actual, con- 
scious, removal of the lack of intent. In the foregoing case it would 
mean a conscious renunciation of the imposed condition, and ac- 



1 68 



THE CASUIST— VOL. II 



quainting the other party with the renunciation, the two conditions 
jure divino requisite for renewal of consent. 

That such a renunciation was not made is attested by the fact 
that Silvia is not conscious of it. 

If, therefore, the marriage was entered into under an actual con- 
dition, then it has been invalid from the very beginning. 

In the solution of this case the all important question is: Had 
Claudius intended an actual condition, or only had an explicit sup- 

position ? 

Hubert Gerigk. 



4 



XXXVIL ADMINISTRATION OP THE LAST SACRA- 
MENTS TO CHILDREN, OVER THE AGE OF 
SIX. IN DANGER OF DEATH 

Sinite parvulos venire ad me et ne prohibueritis eos: talium enitn 
est regnum Dei (Mark x, 14). 

There can be no doubt that the parish priest, after the example 
of his Lord and Master, must in a special manner concern himself 
about children. Of an especial truth are the words : He who has a 
hold on youth, to him belongs the future. We may go farther and 
say : To him belongs also the present. For he who wins the chil- 
dren over to his sacred cause and arouses them for it, has in many 
cases also the parents ; with and through the children he gains in- 
fluence upon the family. A chief part of the priest's effort must, 
therefore, be directed to the care of the children. But if the priest 
has to bestow special attention upon children in the normal state, it 
is befitting and right that he should do the same for those in sickness. 
How could he refuse his assistance to a child at the very moment 
when it needs him most ? Why should he not make it his special 
concern to clear the way to heaven for a child ? Let us inquire then 
what form this spiritual care should take in the case of dangerously 
sick children over the age of six years ; what is to be said of the 
administration of the last Sacraments in such cases? 

The Rit. Rom. (tit. V, ep. 4, n. 1) prescribes: Parochus hortetur 
parochiales suos, ut ipsum admoneant, cum aliquem in parochia sua 
aegrotare contigerit, praecipue si morbus gravior fuerit. This pre- 
cept is quite general (aliquem). It has reference not only to those 
who have already been admitted to Confession and Holy Com- 
munion, but to all the faithful who have attained the use of reason, 

169 



* 



it 

■L. 



170 



THE CASUIST— VOL. II 



all those, therefore, capable of an actual sin, whether of modo per- 
fecto or imperfecto, whether mortal or venial. This, however, can, 
according to the sententia communissima of theologians, not be 
doubted of children who have passed their sixth, or at most their 
seventh year, under generally normal conditions. 

Such child may, therefore, receive Extreme Unction, and the 
priest is bound to administer it to him. Hence the Provincial Synod 
of Prague in i860 proclaimed: Pueris infirmis cum ad earn aetatem 
pervenerint, in qua peccare potuerunt, quamvis nondum communi- 
caverint, administrandum est sacr amentum extremae unctionis. 
Since, however, this Sacrament is a Sacrament of the living, it 
must, as the rule, be preceded by the Sacrament of Penance, or at 
least by sacramental absolution. 

In this sense the Provincial Synod of Cologne of the same year 
expresses itself: Cum extrema unctio sit sacramentum vivorum, 
communiter in suscipiente requirit gratiam sanctificantem; hinc, si 
fieri potest, peccatorum praecedat confessio, si ea jam, qua par est, 
ratione fieri nequit, saltern absolutio. Fidelis omnes, qui graviter 
decumbant, modo olim rationis fuerint compotes, ut peccata com- 
mittere potuerint, capaces sunt hujus sacramenti; hinc etiam aetate 
juniores licet primam communionen nondum susceperint. The de- 
crees of both these Provincial Synods have been approved by the 
Holy See; therefore they are not merely diocesan precepts but 
rather moral dogmatic decisions in concerning what should take 
place in the case of dangerously sick children capable of actual sin 
(children, therefore, above their sixth year). Attention should here 
be given also to the ecclesiastical regulations anent the reception of 
the Sacrament of Penance when in good health. The Cone. Later. 
IV says: Omnis utriusque sexus, postquam ad annos discretionis 
pervenerit, omnia sua peccata, saltern semel in anno x fideliter con- 



ADMINISTRATION OF LAST SACRAMENTS TO CHILDREN 171 

fiteatur. Moreover the Catech. Rom. (De Poenit. 48) directs : Eo 
tempore confessionem puero indictam esse, cum inter bonum et 
malum discernendi vim habet, in ejusque mentem dolus cadere 
potest. Though this is not to be applied to well children above their 
seventh year, it must be held that to children, in danger of death, 
it is certainly a priest's sacred duty to administer this Sacrament. 
Children above their sixth, at any rate above their seventh, year may, 
therefore, receive both these Sacraments, if they are in danger of 
death, and the priest is obliged to administer them. As a mat- 
ter of course general absolution can be given to them. 

Objection should not be made here that these Sacraments when 
administered to such young children might be exposed to irrever- 
ence. It should rather be remembered that the Sacraments were 
instituted by Christ propter nos homines et propter nostram salutem. 
No doubt, with the duty of administering these Sacraments is joined 
the other of preparing young children as well as possible. 

Even less valid is the objection that children at this age have, at 
most, venial sins upon their conscience, and that even these on ac- 
count of imperfect knowledge are only to be viewed as incomplete. 
Even admitting this to be a fact, which it is probably not in all 
cases, in God's sight even the least venial sin is by no means a 
trifling matter and it must be wiped out. Why then should not a 
priest come to the sick child's assistance ? Why should he not help 
to free the child from his small faults and open to him the door of 
heaven? And, in conclusion, can we not be mistaken in a child's 
mental capacity ? Even of young children it is often true : Malitia 
supplet aetatem. The case may even occur that such a child may 
have committed a mortal sin, or at least is capable of committing 
one. Therefore it would be inexcusable to refuse to a child these 
Sacraments. At all events a zealous priest ought, and should, even 






179 



THE CASUIST— VOL. II 



with not very bright children, choose the safer way and in danger 
of death administer these two Sacraments (conditionally if neces- 
sary). St. Alphonsus also holds so. To the question: An hoc 
sacramentum conferri possit pueris, de quorum usu rationis dubiutn 
vertit? he replies : 

Sententia probabilior dicit, tales pueros ungendos esse sub condi- 
tione, quia per conditionem jam salvatur reverentia sacramenti, et 
aliunde justa adest causa illud ministrandi sub conditione, ne priven- 
tur pueri fructu tarn salutari hujus sacramenti (S. Alph., I. 6, 

n. 718). 

Vicar Lebherz. 



XXXVIII. THE ADMINISTRATION OF THE LAST 

SACRAMENTS (INCL. VIATICUM) TO DANGER- 

OUSLY SICK CHILDREN UNDER SIX 

YEARS OF AGE 



In the preceding paper there is discussed the question whether the 
last Sacraments may be administered to dangerously sick children 
over six years of age. Of course it was not intended to say that 
the Sacraments there mentioned may not even be administered to 
children of five (or four) years of age, at least conditionally. 

Let us pass, therefore, to the question: May the Viaticum be 
given to such children ? and, if so, is the priest obliged to do so ? 

We must here observe first of all, that for the reception of Holy 
Communion a greater maturity of mind is required than for the 
reception of Extreme Unction and the Sacrament of Penance. On 
the other hand it should not be forgotten that there is not requisite 
for the reception of the Holy Eucharist modo Viatice the same 
maturity of mind as for the Communion ex devotione. Suarez 
states — and in this opinion he is supported by other theologians: 
"De communione facienda in articulo mortis non est eadem ratio." 
At any rate it suffices here that the child is able to distinguish the 
Sacrament from ordinary food, to adore it and receive it reverently. 
In this sense Benedict XIV expresses himself : 

"Poterit episcopus synodali constitutione parochus compellere ad 
administrandum ss. viaticum pueris mox decessuris, si eos com- 
pererint tantam assecutos judicii maturitatem, ut cibum istum coeles- 
tem et supernum a communi et materiali discernant; haud enim 
leviter delinquere credimus, qui pueros etiam duodennes et per- 
spicacis ingenii sinunt ex hac vita migrare sine viatico hanc unam ob 

i73 



174 



THE CASUIST— VOL. II 



causam, quia scilicet nunquam antea, parochorutn certe incuria et 
oscitantia, eucharisticum panem degustarunt" (De Synod, dioec. 
1. VII, c. 12, n. i et 3). 

Under this supposition St. Alphonsus regards it a sententia com- 
munissima, that the Viaticum not merely may, but should be ad- 
ministered. "Pueris, qui jam sunt compotes rationis in articulo 
mortis non solum communio dari potest, sed etiam debet" (S. Alph. 
6, n. 301). Benedict XIV denotes the contrary practise of parish 
priests as a gravem abusum radicitus extirpandum. According to 
Benedict XIV, and to St. Alphonsus, it is therefore a strict duty 
to administer the Viaticum pueris, qui rationis compotes sunt. Gury 
expresses himself still more positively. He replies to the question : 

"An in periculo mortis communio tribuenda sit pueris, qui nondum 
ad sacram synaxim admissi sunt? Afhrmo, quoad pueros qui sunt 
rationis compotes. Immo non solum eis dari potest, sed etiam dari 
debet Ratio est, quia ex una parte pueri in tali periculo constituti 
tenentur ex praecepto divino communicare; ex alia parte utilitas 
eucharistiae tunc majorem dispositionem non exposcit. Graviter 
igitur errant parochi, qui viaticum huiusmodi pueris administrare 
nolunt" (Gury II, n. 320). 

These are probably the most important ecclesiastical precepts and 
utterances of theologians about the administration of the Viaticum 
to dangerously sick children. However, for our question whether 
to children before their sixth year the Viaticum may be administered, 
there is nothing gained from these quotations, as none of the 
passages quoted speak of children of six years of age. Indeed the 
above words of Benedict XIV appear to me as denying our ques- 
tion. He censures only parish priests who refused the Viaticum to 
children of twelve years on the ground that they had not before 
received Holy Communion. He would without doubt have censured 



ADMINISTRATION OF LAST SACRAMENTS TO CHILDREN 175 

also those who refused the Viaticum to six-year-old children were 
they to be censured. These children have not only never received 
Holy Communion, but have not even received the Sacrament of 
Penance. It appears to me also that the passages, given before, in 
proof that Extreme Unction and the Sacrament of Penance are to be 
given to six-year-old children, speak against the administration of 
Viaticum. It is said there repeatedly: quamvis nondum communi- 
caverint, or licet primam communionem nondum susceperint There 
is, therefore, a distinction made here between the capability to re- 
ceive the two first Sacraments, and the capability to receive the 
Viaticum. In Suarez there is, however, a passage which does not 
make this distinction. He says: "Existimo in articulo mortis dan- 
dam esse communionem cuicumque homini habenti usum rationis ad 
peccandum et capaci confessionis et extremae unctionis." He also 
adds that the child is obliged to receive, and the priest obliged to 
administer. Suarez, however, stands alone in this opinion. All 
others make use of the universal expression : Qui sunt rationis com- 
potes. To these belong under normal conditions six-year-old chil- 
dren. But as I have already pointed out there is a distinction to be 
made between children who have sufficiently attained the use of 
reason to be capable of actual sin, and those who are so advanced 
even that they can reverently adore the Eucharist, and who are 
aware of what they are partaking. This is rarely the case with six- 
year-old children, and yet we must require this at least. It must be 
admitted that there may be six-year-old children who, after previous 
instruction, are capable of receiving the Viaticum. But even in such 
cases I believe the administering of the Viaticum should be omitted 
for reasons of prudence. In some cases of grave illness it will be 
impossible to prepare children sufficiently. If the priest administers 
Holy Communion to a certain capable and sufficiently instructed 



176 



THE CASUIST— VOL. II 



child, and not to others, it is easy to see that unpleasantness will 
arise, on part of parents, etc. That such cases where the Sacra- 
ment can properly be administered will be rare, experience teaches. 
Experienced and zealous priests therefore observe this practise. 

My opinion is that children before their sixth year may receive 
Extreme Unction and the Sacrament of Penance, and that the priest 
is obliged to administer them (sometimes conditionally). The 
Viaticum, however, can only be given in rare cases, and even then 
there is no obligation to administer it. 

N. B. — It is evident that such children must be interred according 
to the ordo sepeliendi adultos. The ordo sepeliendi parvulos applies, 
as its wording demonstrates and as also the Rit. Rom. expressly 
declares, only to children qui ante usum rationis eripiuntur et ora~ 
tione Ecclesiae non indigent. This is not the case of six-year-old 
children. 

Vicar Lebherz. 



XXXIX. NULLITY OF MARRIAGE BECAUSE OP 

ANTECEDENT INSANITY 

S. married in March, 1886, the girl H., twenty-three years old. 
The latter, even before the marriage, had given unmistakable symp- 
toms of mental derangement, which reappeared afterward and in- 
creased to such an extent that it was necessary to confine her as a 
raving maniac in an insane asylum, where she still is without hope of 
recovery. On July 14, 1894, S. obtained the civil decree of divorce 
for which he had sued, and on April 9, 1895, he married one A., 
who bore him several children. To appease his conscience S. ap- 
plied to his bishop to annul his marriage with H., claiming that the 
necessary consent had been lacking owing to previous insanity of 
H. The bishop did not grant the petition because the nullity of the 
marriage h^d not been established. The metropolitan chapter to 
which S. then appealed decided the marriage in question was null 
and void. The defender of the marriage tie now appealed the case 
to the S. C. C. We give in the following the vote of the canonists 
of the S\ C. C, approved by the Congregation. 

Without entirely voluntary consent no marriage can take place. 
Consent can be voluntary only when given by one who is the com- 
plete master of his actions and resolves upon the consent after ma- 
ture deliberation. Canonists hold that in regard to the marriage 
contract the same deliberation is requisite as for the committal of a 
grievous sin. An insane person, therefore, can only then give the 
requisite consent for marriage if he or she has lucid moments and 
gives consent in one of these. These conditions, however, should not 
be pre-supposed, but must be proved beyond all doubt. If any doubt 
remains, then insanity must be pre-supposed, because it is the perma- 

177 



178 



THE CASUIST— VOL. II 



nent state. Applying this principle we find as follows : Many cases 
of insanity have occurred in H.'s family. As regards H. herself, 
since the years of discretion to within six months of the marriage 
she did things which were, to say the least, forewarnings of insanity. 
Two weeks before the ceremony unmistakable symptoms of insanity 
frequently showed in her. Thus she asked for the last Sacraments, 
although perfectly well. Even during the wedding ceremony there 
occurred manifestations of madness. As an instance, she tore the 
bridal wreath from her head, and only by force could it be replaced. 
When the moment came to step to the altar she hesitated, and only 
after urging followed the bridegroom. Again, she had to be asked 
three times before she would place her hand in the bridegroom's. 
On the evening of the wedding day she threw the wedding ring 
down on the floor and retired to sleep with her sister. The canonist 
concludes from these facts that the necessary consent to the marriage 
has been lacking and that for this reason the marriage is to be re- 
garded as invalid. 

Herm. Kustgens, D.D. 



XL. A RAILWAY DISASTER CAUSED BY MISCHIEF 



Audax, a mischievous farm hand, amused himself late one evening 
by misplacing railroad switches. His intention was to get the switch- 
man angry. After a while along comes a train, runs into the wrong 
track and demolishes some cars standing there. The switchman 
escapes punishment of dismissal solely because of his previous good 
record, but he is sentenced to pay damages of one hundred dollars. 
After a time Audax goes to confession and asks whether he is 
obliged to make good the $100. The confessor absolves him from 
so doing in consideration of the fact that neither switchman nor 
station master had fulfilled their duty of inspection. Did the con- 
fessor decide rightly? 

Answer. The confessor's decision is not correct in all points. 

1. The reasoning by which he denies the obligation of restitution 
is erroneous. Supposing the switchman had neglected his duty of 
inspection (whether such was really the case can only be ascertained 
from the interval of time between Audax's mischievous deed and 
the train's arrival) he is the negative cause of the damage, answer- 
able to the railroad company for it, because it was a neglect of his 
official duty and he has to bear the consequences. But Audax at 
all events is the cause of the harm done, and at that the positive 
cause, and the positive doer of damage is bound to make restitution 
before the negative doer, if otherwise the conditions which require 
restitution prevail (Lehmkuhl, Theol. No. I, n. 1016; S. Alph. 
"b. 3, n. 573). 

2. If Audax would become known, and be accused, as the per- 
petrator, there is no doubt but that he would be sentenced to pay 
damages and these would also bind in conscience. For this there 

179 



i8o 



THE CASUIST— VOL. II 



is necessary, besides causing the damage, only the legal guilt and 
this is undoubtedly present (Lehmkuhl, Theol. Mor. I, n. 965). 

3. If the matter is merely to be decided in the interior forum, it 
must be ascertained that there was culpa gravis theologica, not only 
against justice graviter culpabilis, but to an extent also the anticipa- 
tion of ensuing damage. Of itself Audax's deed is a grievously 
sinful act; it might well have happened that the displacing of the 
switches had resulted not only in the demolishing of two cars, 
but in a much more serious accident, perhaps with loss of human 
life. It would be therefore proper to ask Audax if he had not 
thought of the possibility of such a calamity. If admitting he 
had such thought, he would have to be held to make restitution, 
even if he had carelessly persuaded himself that just then a disaster 
would hardly occur. Should he earnestly assert that he had not 
thought of the possibility of a calamity, and that he expected the 
switchman would immediately come around, and, furious about the 
displaced switches, set them in order— a possible train of thought 
for an easy going boy — he could not then be held in conscience to 
make restitution. There might be a culpa gravis against charity in 
exasperating one's neighbor so maliciously (this is not examined 
here), but there is here no gravis culpa with regard to causing seri- 
ous damage. That in this case the switchman had to bear the dam- 
age is unfortunate, but not unjust. 

Aug. Lehmkuhl, SJ. 



XLL THE AGE FOR CONFIRMATION 

Every baptized person, not yet confirmed, may receive Confirma- 
tion. For this reason Confirmation may be administered even to 
young children who have not yet arrived at the years of discretion. 
As a fact this Sacrament was formerly administered immediately 
after Baptism. According to present discipline, however, the 
Church does not allow it to be administered to children before the 
completion of the seventh year, and not until the attained use of 
reason. Man is to receive the fulness of Christian life, through the 
imparting of the Holy Spirit, at an age when capable of leading a 
Christian life. Confirmation may, however, even now, be admin- 
istered earlier: 1. When there is a lawful custom of earlier recep- 
tion, as is the case in Greece and Spain (where children are con- 
firmed at the age of two or three years) ; 2. When the bishop by 
reason of great extent of his diocese, or for other important reasons, 
can but seldom confirm; 3. Where danger exists that a child might 
die before Confirmation and the bishop wishes to go and confirm 

him. 

In many parts it has become customary that children are con- 
firmed only after making their first Holy Communion. What Leo 
XIII thought about this custom is plain from his letter to the 
Bishop of Marseilles, who had abandoned the former custom and 
confirmed children before their first Holy Communion. In his 
letter Leo XIII expressly approves of the bishop's procedure and 
says of the existing custom : Ea nee cum veteri congruebat constan- 
tique Ecclesiae instituto nee cum Udelium utilitalibus. 

There lie dormant in the heart of the child the germs of most 
varied desires, which may bring about man's undoing, if not early 

181 






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THE CASUIST—VOL. II 



weeded out. From earliest youth the grace and assistance of the 
Holy Spirit are required to this end. The Holy Father sees a two- 
fold advantage in early Confirmation: The childish mind is made 
more receptive for acquiring the Christian rules of life, it will be 
better prepared for the Holy Communion later to be received, and 
will obtain therefrom greater fruits: Porro sic conHrmati adoles- 
centuti ad capiendo praecepta molliores Hunt, suscipiendaeque post- 
modum Eucharistiae aptiores, atque ex suscepta uberiora capiunt 
etnolumenta. The matter is one for the bishops to regulate for 
their respective dioceses. 

Fr. Goepfert, D.D. 



XLIL RESTITUTION, ON ACCOUNT OF THE 
PURCHASE OF STOLEN GOODS 

Anastasia, saleswoman in her sister Lucia's store, buys provisions 
which their vender, a housekeeper, has secretly taken out of her 
allowance, as she considers herself entitled to them through her 
economy in the management of the household, and also to improve 
her wages, which she considers insufficient. Anastasia purchases 
these things, partly not to expose this person in the presence of 
others, and partly because her sister has told her she may safely do 
so, and that the responsibility for the truth of the assertion rested 
with the housekeeper. 

Is this proper, or is there in regard to the injury done to the 
housekeeper's employer the obligation of restitution, and in what 

order ? 
Answer. I. The housekeeper can not be considered justified in 

appropriating anything over the agreed wages, under the pretext 
of compensation. To make such a thing permissible it would have 
to be proved that the person had been forced to work for unfairly 
low wages. This is not to be supposed in our case. The pretext of 
economical saving may be regarded more leniently, if in reality the 
articles ordinarily used in the household were supplied at a saving. 
2. The purchase, on part of Anastasia and Lucia, is of articles 
which at least are very doubtful property of the vender ; that a great 
part of these wares are the property of another, therefore stolen, is 
morally certain. Consequently their purchase is unlawful ; nor does 
it become lawful because Anastasia hesitates to expose the vender ; 
she can and must refuse the deal, and in order to talk this over with 
the housekeeper alone this person may be asked to wait until all 
other customers have left. 

183 



1 84 



THE CASUIST— VOL. II 



3. As there is acquisition of very doubtful, even positively un- 
righteous, property, the obligation of restitution prevails. As con- 
cerns the order, the housekeeper is liable in the first place ; she must 
refund to her employer the value received, or, in case the articles 
were sold below their value, the actual value of all things to which 
she had no certain claim ; in regard to the balance between the real 
value and the price received, she is entitled to reimbursement from 
Lucia's cash drawer, which profited by this difference in price. In the 
second place, if, namely, the housekeeper can not, or will not, make 
restitution, Anastasia and Lucia are liable for the loss which the 
employer has suffered. The entire loss must be refunded if the 
injustice of the appropriation is positively ascertained; if the 
injustice remains in doubt, the restitution may be reduced to a part, 
say one-half. Finally, it may be asked whether Anastasia is obliged 
before Lucia, or Lucia before Anastasia. As Lucia approved of 
Anastasia's action and Anastasia bought only in Lucia's name, the 
obligation of restitution falls first of all upon Lucia. Should Anas- 
tasia make restitution she would, in case the housekeeper could not 
be made to reimburse her, be entitled to recover the money from 
Lucia ; both, however, Anastasia as well as Lucia, are entitled to re- 
imbursement by the housekeeper for the money paid to her. 

August Lehmkuhl, SJ. 



XLIII. CO-OPERATION BY THE FURNISHING OF 

NON-CATHOLIC CHURCHES ] 

A firm manufacturing stained glass, owned by a Catholic, received 
a handsome order from a Protestant community. The head of the 
firm asks Father A. whether he can properly and with a clear con- 
science undertake the commission. 

Father A. forbids this, absolutely, as it would be assisting in 
building a temple for heretics. Subsequently Father B. is asked, 
who at once permits the firm to do the work. 

Who is right? What justification is there for obeying one and not 
the other? 

If Fathers A. and B. gave their decision without further inquiry 
into the status of the case, they both erred. We will explain this 
more fully. What is here really concerned ? A Protestant house of 
worship is in need of stained glass windows ; if the house were in- 
tended for profane purpose there would be no difficulty whatsoever. 
But the windows are to adorn a place where will be held worship the 
participation in which is forbidden by the Church, consequently a 
co-operation in something prohibited, a cooperatio ad rem malam, can 
not be denied. In the cooperatio, however, the first question is, can 
it be designated as formal? If so, there can be no permission, be- 
cause it would be an actual participation in the sinfulness of the act, 
therefore a sin ; if not formal, then it is material, and the act of the 
co-operation is neither bad of itself nor of its intention, it would 
solely become wrong through the guilt of the performer. That is 
sufficient, however, to render such co-operation unpermissible. The 
law of charity requires us to prevent evil as much as possible, 
primarily, therefore, not to assist in it in any way at all. The obliga- 

185 






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THE CASUIST— VOL. II 



tions of charity, however — we must not overlook this— exalted as 
they are, do not oblige us in general under great sacrifices, i. e., for 
sufficient reasons to suffer evil to be done is not sinful. Hence the 
principle that a material co-operation is permissible for comparatively 
grave reasons. In material co-operation the question of the im- 
portance of the motives for the action are of great import. The 
more sinful the act, the greater the injury, the worse the scandal — 
on the one hand; on the other hand the more closely the material 
co-operation is connected with the act, the more necessary the co- 
operation for its accomplishment — then the more weighty must be 
the reason that is to render such material assistance permissible. 

Let us apply this principle to the case before us. It is here a 
question of material support of a heretical sect ; therefore the great- 
est good, the faith, is at stake. If by refusal of assistance the faith 
could be preserved, or a real injury to it averted, then our duty is 
clearly defined. Such would be the case if a new sect was being 
founded, or if a sect newly entered a locality theretofore free from 
all heresy. Hence the great severity of the rescript of the Cardinal 
Vicar of July 12, 1878. 

If, however, a sect is tolerated to prevent greater evil, and officially 
recognized by temporal authorities, the case is a little different. The 
danger to the faith has become chronic, not so burning ; the scandal 
has become lessened by conventionalism, though unfortunately not 
without spreading indifference in matters of faith. For the Catholic 
there remains the duty of abstaining from material co-operation, 
especially one directly connected with the promotion of heresy, as, 
for instance, contributing money to build heretic churches, con- 
tributing, or helping, at bazaars for the same purpose, etc. Archi- 
tects must not make plans for such churches, nor erect the building, 
unless a more important reason exists than the gain itself. Fre- 



FURNISHING OF NON-CATHOLIC CHURCHES 



187 



quently, however, it will be best not to say anything about this, and 
not to disturb the good faith that has arisen from long existing 
practise. The decoration of churches appears to be less intimately 
connected with the prohibited worship than the building of the 
church itself. For this reason the furnishing of stained glass work 
might more easily be permitted ; yet there should be a weightier rea- 
son than the ordinary gain, for instance actual lack of work which 
threatens the business, or which necessitates the discharge of work- 
men, who then would only with difficulty obtain other positions, and 
similar reasons, such as great improvement of the firm. If such 
reasons exist, and the locality in question is one of mixed religions, 
if there is no scandal to fear, or if it may be removed by explanation, 
the firm may undertake the work. The pictures must of course not 

bear even a trace of heresy. 

W. Stentrup, S.J. 



THE EXTENT OF OBEDIENTIA CANONICA 



189 






1 

! 






XLIV. THE EXTENT OF OBEDIENTIA CANONICA 

In certain circumstances the solemn promise of ecclesiastical 
obedience is demanded. Such promise is, in first place, by precept, 
made and confirmed by oath to the Pope. The cardinals take this 
oath of loyalty to the Pope upon their elevation to the cardinalate ; 
the archbishops before their investure with the pallium ; this oath of 
loyalty forms part of the ceremonies at the consecration of bishops 
and abbots; it is contained in the Tridentine confession of the 
faith, and hence is required of all who, according to ecclesiastical 
precept, must make the Tridentine confession of faith. In the latter 
the formula is : Romano Pontifici, beati Petri Apostolorum principis 
successori ac Jesu Christi vicario veram obedientiam spondeo ac] 

juro. 

Besides this oath of loyalty to the Pope, there is at the consecra- 
tion of priests a simple promise of obedience (not on oath) given by 
the newly ordained into the hands of the officiating bishop, to him, 
and his successors, if he is the diocesan bishop of the newly or- 
dained, otherwise to the ordinary of the diocese to which the newly 
ordained will belong: Promittis mihi et successoribus meis (Pontifici 
or Praelato Ordinario tuo pro tempore existenti) reverentiam et 

obedientiam. R. Promitto. 

Only after this solemn promise has been given, the kiss of peace 
is imparted to the ordained, and the latter receives full recognition 
as lawful priest of the Catholic Church. 

What new obligations are assumed by this oath, and by this 
promise? That some new obligation is assumed can hardly be 
doubted. The oath taken binds the conscience with a new moral 
bond, at least that of the religio, so that disobedience is not merely 

188 



disobedience but perjury as well, and related to sacrilege. The 
simple promise of the newly ordained priest, though not possessing 
the same rigor of obligation, must still be viewed, even though in 
lesser degree, as a vinculum religionis, or as a ratification of the 
vinculum created by the ordination, as the solemn elevation to the 
most sublime state is on the part of the Church only consummated 
and approved after the deliverance of this promise. Though a new 
bond of obligation is therefore forged, the question follows: is 
there a new obligation? This can, in a certain sense, be affirmed, 
but also just as correctly denied. An obligation ensues to some- 
thing new, inasmuch as with that promise of subjection a new 
office is undertaken ; hence there ensue new obligations of office and 
state of life, especially new obligations of duty toward the higher 
ecclesiastical superiors. But these obligations already exist inde- 
pendently of the oath rendered or the promise made: they are not 
created by the latter, only confirmed and emphasized. 

In matter and extent the obligation of canonical obedience is, on 
the one hand, measured by the office and the state, in the assump- 
tion of which the vow of obedience and submission is rendered ; on 
the other hand the power to impose commands and to require obedi- 
ence is measured by the official position of the one to whom the 

vow is made. 

Wernz, in his Jus Decretalium, Vol. 2, n. 192, says correctly that, 
"The promise of obedience or the oath of loyalty extends for 
clerics only to lawful and ecclesiastical matters, especially to those 
specially expressed in the formula of the oath, and thereby bishop 
or clerics in no wise become vassals, or political subjects, of the 
Pope " Special matters are referred to in the bishop's oath ; not in 
the oath in the Tridentine confession of faith. In this therefore, the 
affirmation by oath has reference only to the universal relation of 






190 



THE CASUIST— VOL. II 



THE EXTENT OF OBEDIENTIA CANONIC A 



191 



submission of the Catholic Christian to the ecclesiastical precepts 
of the Papal See. 

In regard to the priestly promise, Wernz, loc. cit., explains: 
"Obedientia canonica, quant clericus et beneficiatus suo Episcopo 
praestare tenetur, generatim in hoc consistit, ut ipsius legibus et\ 
praeceptis, sententiis et correptionibus, doctrinis et monitis prompte 
obsecundet. Inter alia vigore promissae obedientiae canonicae prae- 
sertim etiam Mud exigitur, ut clericus licentia sui Episcopi in aliam 
diocesim non discedat, derelicto servitio Ecclesiae, cui in ordinatione 
addictus fuerat. — Quare licentia ab Episcopo in forma legitima est 
danda et absque justa causa denegari nequit. — Episcopus clericum 
dioecesanum qui certo loco non est adscriptus, invitum retinere non 
potest, ne a sua dioecesi discedat et alibi parochiam accipiat; quod si 
ilium propter necessitatem omnino in diocesi retinere vel ad Mam 
revocare velit, il facere non prohibetur, dummodo eidem de congrua 
provideat" 

The first and chief duty of canonical obedience is, then, not tor 

1 

abandon of one's own accord the assumed office, nor to break arbi-* 
trarily the relation to the diocese. 

Then follows, as second obligation, the duty to obey, in the charge 
undertaken, the ecclesiastical instructions of the bishop, and to 
obey, still more zealously, the related higher regulations. Such 
higher regulations are contained, for instance, in the constitution 
of Leo XIII on prohibited books, and printing. Apart from par. 22, 
which commends a general precept specially to the clergy, par. 42 is 
particularly addressed to priests : "Viri e clero saeculari ne\ libros 
quidem, qui de artibus scientiisque mere naturalibus tractant, incon- 
sultis suis Ordinariis publicent, ut obsequentis animi erga illos ex- 
emplum praebeant. — Iidem prohibentur, quominus, absque Ordi- 
nariorutn venia, diaria vel folia periodica moderanda suscipiant." 



The last sentence touches, therefore, a third instance, i. e., non- 
ecclesiastical matters, in regard to which priests may owe sub- 
mission and obedience to their bishop. But we see that this is a 
fact only in a very restricted extent. In this sentence there is refer- 
ence to things which prejudice in a high degree the fulfilling of the 
obligations of office and state, or which endanger the reputation of 
the priest or the priestly state. That in such matters the bishop may 
exert power is evident ; that such conditions be prevented is prob- 
ably the reason for the general precept. Where, therefore, condi- 
tions or reasons prevail, like those which occasioned the papal pre- 
cept, the bishop may act by power of his authority, and demand the 
priest's obedience. In other non-ecclesiastical matters this will 
hardly be the fact: except where matters are concerned which also 
otherwise are shown to be prohibited or to be required ; to an exact 
fulfilment of duty, in all matters, the bishop must without doubt 
hold his clergy in a special manner, as they should set a good 
example to the rest of the faithful, always and everywhere, by spot- 
less conduct and faithful fulfilment of duty. Without question the 
episcopal authority remains therefore quite within the privileges of 
its office when it, in kindred and not necessarily ecclesiastical mat- 
ters, without actual command imparts admonitions and directions, in 
order to prevent faulty steps, or to warn against faulty actions and 
ways of acting, which might give scandal, or may be unedifying. 

Aug. Lehmkuhl, S.J. 



P I LF BRINGS OF PROVISIONS 



193 



XLV. PILFERINGS OF PROVISIONS-A CASE OP 

RESTITUTION 

Caius who for thirty years has staid away from the Sacraments, 
resolves' on the occasion of a mission to go to confession. To the 
question why he had not been to confession so long, he gave the fol- 
lowing answer : "I was employed in a large provision house which 
belonged to a rich Hebrew. Like all others there employed I took 
home provisions, such as flour, sugar, coffee, etc., without the knowl- 
edge, and, of course, against the will, of the employer. This has 
been going on for thirty years. Had I gone to confession I should 
have had to stop these pilferings, and so could not have cared for 
my household as abundantly as before. Now, however, I have been 
pensioned and do not need the help any longer, and therefore I come 

to confession." 

The missionary asks: "Is Caius obliged to make restitution? or 
are there excusing circumstances, as, for instance, great and to an 
extent unjustly acquired wealth of the employer; or the thought of 
additional compensation in view of unsufficient wages? Such ex- 
cuses were not, however, present in the man's mind, he was con- 
scious of committing theft." 

To the first question, is Caius obliged to restitution, we must reply 
with an unconditional yes. In our case both conditions which create 
the obligation of restitution are present. For thirty years he has 
committed one theft after another, and thus caused his employer in- 
jury which it is his duty to make good. Even if the individual 
pilferings were not serious in themselves, yet his intention, as also the 
aggregate of the matter, puts beyond question the seriousness of the 
injury and of the guilt. The other condition, unjust acquisition of 

192 



another's property, is also present. For Caius possesses all the stolen 
goods in aequivalenti, i. e., in his property. During all these years 
he was enabled to lay aside that part of his salary which otherwise 
would have been employed in purchasing provisions, or he has used 
it for the good of his household, and thus has enriched himself at 
the expense of his employer. The surplus gained in this manner he 
can not call his own, it is the fruit of his pilferings and ought not to 
remain in his hands. 

But the missionary asks, further, whether there are mitigating cir- 
cumstances. Let us keep in mind the penitent's confession : Caius 
was conscious of stealing. His only excuse is that the others did 
likewise. This, however, can not make an unjust act a just one, un- 
less possibly the silent consent of the employer may be supposed. 
But he did not approve ; the thefts took place without the knowledge, 
and against the will, of the owner, as Caius himself avows. 

Could not the idea of secret compensation excuse? Of course; 
Caius had no such idea ; but that would make no difference. For if 
some one has been wronged there remains for him the claim for 
compensation, until he has received it, or voluntarily renounced it. 
But let us not forget that he who would thus secretly compensate 
himself, apart from other conditions, must be morally certain of the 
justice of his demands. Is this so with Caius? In the casus nothing 
points to an insufficient salary, indeed the pension granted by his 
former employer would demonstrate his liberality. To take refuge in 
a presumable condonation by the employer appears likewise to be 
excluded, as the proprietors of large commercial establishments are 
little inclined to such leniency. 

To the missionary, in his proper desire to assist his penitent as 
much as possible, the idea occurs that the Hebrew had for the 
greater part unjustly acquired his wealth. Is this certain? And 



THE CASUIST-VOL. II 

194 

even if it is: the flour, sugar, etc., belonged to the Hebrew and 
therefore he is injured in his property. But let us suppose-and 
Caius probably can throw light upon this subject-dishonest trans- 
actions have taken place. Then the next question is, how is Cams 
concerned? Either he positively co-operated or he did not. In the 
former case he is obliged to restitution to the defrauded ; in order, 
of course, after the employer in whose name he acted. Nevertheless 
this would open a way which at least will materially facilitate the per- 
formance of restitution. For Caius must make restitution to the 
injured, but has the right to claim indemnification from the Hebrew. 
Let him therefore give the unjustly acquired property to those 
that were cheated. The latter are, however, numerous and to a 
great extent unknown ; besides, most of them were probably not 
seriously injured and therefore Caius in his difficulty may let the 
poor take their place. The confessor accordingly should impose 
upon Caius the obligation to give alms as generously as his circum- 
stances permit ; thus restitution will be made gradually as far as 
possible. If Caius has not positively co-operated in frauds, but knew 
positively of the injustice that took place, then he may regard the 
victims as creditors of his former employer and return to them 
that of which they were deprived in the manner above described, 
with the reasonable presumption that the employer had no in- 
tention of restitution. 

W. Stentrup, SJ. 



XLVI. A CASE OF RESTITUTION 



A workingman, named Caius, went one evening with some com- 
panions for a walk in the outskirts of the city. Suddenly he was 
set upon by an exasperated enemy, Gracchus, who had been lying in 
wait for him, and who threw him from the roadway down into the 
ditch. The violent fall from considerable height might have caused 
serious injuries, even fatal ones ; as a matter of fact, however, Caius 
was not hurt. Nevertheless he pretended to be injured, and had his 
friends carry him home. Subsequently he brought suit for assault, 
in consequence of which Gracchus was sentenced to a term in prison, 
also to pay Caius damages to the amount of fifty dollars ; further- 
more Gracchus had to pay costs, and suffered in consequence of his 
imprisonment a lapse in wages, so that his financial loss amounted 
in all to about one hundred dollars. Caius wishes to know whether 
he must make restitution to Gracchus. 

Answer. 1. Caius by his false accusations against Gracchus has 
formally violated justice, and is therefore obliged to restitution, for 
he biased the court, and the measure of punishment, in an effective 
manner, as the nature of the complaint is the basis upon which jury 
and judge find according to law. For this reason, presuming the law 
and the court are just, sentence and punishment in their moral jus- 
tification depend entirely upon the complaint. If this is false and 
unjust, so are sentence and punishment. This is plain and therefore 
Caius can not be exonerated on account of lack of intention. Indeed 
we may safely say : he intentionally misstated the complaint so that 
Gracchus' punishment might be heavier ; for nemo gratis mendax. 
Hence it is immaterial for our case what particular motive induced 
him to lie in court, whether hatred, greed, or what else. All con- 

i9S 



196 



V 



THE CASUIST— VOL. II 



ditions are therefore present that constitute the obligation of resti- 
tution in the forum of morals, namely an iniusta actio, quae est 
causa damni per se eificax et theologice culpabilis. Caius for this 
reason is obliged to restitution, and he alone, provided the court was 
fair, as may be presumed. 

2. The question is then, to what extent is he to make restitution ? 
To the extent of the difference, the increase, caused by the false 
complaint. For it was Caius' right to sue, though the charge was 
properly not that of corporal injury, but that of an attempted crime, 
which would not have included indemnification for Caius in the 
sentence, as only actual injury, not the attempt at it, entitles to such. 
For this reason Caius must, first of all, make restitution of the fifty 
dollars. As regards the rest : costs and loss of wages, we may sup- 
pose that the delinquent would also have been condemned to pay 
costs to about the same sum, had the complaint been according to 
facts, while the term of imprisonment would have been shorter. 
Strictly speaking, therefore, Caius has to refund what money value 
corresponds to the increase of the imprisonment due to the false 
charge. Oa the other hand, he may now, when it comes to the 
consideration of restitution, compensate himself for all the dis- 
agreeable vexation which the affair has occasioned him without his 
fault. Both matters in their moral valuation might be considered as 
about equivalent and so there would be little or nothing of the one 
hundred dollars remain for restitution to Gracchus. As a matter of 
fact, a hundred dollars is not too heavy a fine for an offense that 
might have easily caused serious injury, even death. 

Alb. Krapoll, S.J. 



XLVII. ABSOLUTION OF A DYING PERSON IN THE 

STATE OF UNCONSCIOUSNESS 

In the conferences held in Coetu s. Pauli ad s. Apollinarem at 
Rome, experienced theologians submit solutions of pastoral cases. 
The following is a case which P. Maurus M. Kaiser, O. Praed., 
presented and solved : 

Father Titus was at dinner with his assistant, Father Caius, when 
the sexton rushed in and announced that some man had been danger- 
ously wounded by another, who then turned the weapon against 
himself and attempted suicide; both were near death. The two 
priests hastened at once to the side of the dying, the pastor attending 
the aggressor, and the assistant the victim. When they returned the 
curate remarked : "I was just in time ; the poor fellow, although quite 
unconscious, still lived, and thus I was enabled to give him absolu- 
tion." "That was quite useless, ,, answered the parish priest. "And, 
moreover, this murdered youth was overtaken by the judgment of 
God ; he has lived in sin, given great scandal, and staid away from 
the Sacraments. As regards the murderer I did not give him abso- 
solution, although bystanders told me that before my arrival he had 
indicated, by winking his eyes, that he desired something. But the 
Sacrament of Penance can not be effective without the acts of the 
penitent; these are the matter of this Sacrament, just as water is 
the matter in Baptism. If, therefore, contrite confession is absent, 
then the absolutio, the forma Sacramenti, can not be applied." 
Whereupon Caius doubtfully shakes his head. 

Questions. — I. May a dying person, who is unconscious and gives 
no sign of contrition, be absolved ? 

II. Which of the two priests acted correctly? 

197 



198 



THE CASUIST— VOL. II 



III. What is to be thought of the reason with which the pastor 
sought to justify his action? 

Resp. ad. I. We may distinguish two cases. If it is a dying 
person who no longer is able to give the priest a sign of contrition, 
but who has given such signs to those present before the priest's 
arrival, then it is, as Billuart states (De Poenit, Diss. 6 a 10, para. 
7) : "Communis et certa sententia in variis Conciliis et locis Juris? 
deHnita, talem moribundum esse dbsolvendum, saltern conditionate 
et iuxta plurium opinionem valde probabilem potius absolute." 

In this case there is, therefore, no difficulty. But if the dying 
person has neither before nor after the priest's arrival given a sign 
of contrition, then the case is more difficult. St. Alphonsus (Theol. 
Mor. 1, 6, 428) mentions two opinions. Some authors, he states, 
naming Busenbaum, Lugo, Suarez, Roncaglia, Laymann, are of 
opinion that absolution can not be given, and he adds : Ratio brevis 
sed valde urgens est, quia tunc deest materia sacramenti, quae debet 
esse sensibilis. Nevertheless he himself agrees with the sententia 
communior which asserts one can and should give absolution condi- 
tionate to such dying person, if this person has lived a Christian life. 
Billuart likewise defends this opinion, "although several great theo- 
logians oppose it." The reason that St. Alphonsus gives for this 
opinion is that the Sacraments were instituted on man's account, 
and that, therefore, in cases of extreme necessity, one may ad- 
minister them even if the matter is doubtful : "Necessitas efficit, ut 
licite possit ministrari sacramentum sub conditione in quocunque 
dubio; per conditionem enim satis praepeditur iniuria sacramenti et 
codem tempore satis consulitur saluti proximi. 

But is the reason given for the first opinion, namely : The absolu- 1 
tion can not be given "quia diest materia sacramenti, quae debet esse 
sensibilis; 9 not a good one? The Materia Proxima of the Sacrament 



ABSOLUTION OF AN UNCONSCIOUS PERSON 199 

of Penance are the actus poenitentis — contritio et confessio — and 
surely if these acts are not perceivable in any way, nor may be pre- 
sumed in any way at all, then absolution can not be given. This is 
plain if, according to the opinion of St. Thomas, we suppose the 
actus poenitentis as materia ex qua. But even if, with Scotus, we 
consider this actus only as materia circa quam, or as conditio sine 
qua non, the proposition is not different. For if the condition is in 
no wise fulfilled, nor can be presumed in any way as having been 
fulfilled, then absolution can not be given. 

The question, therefore, is whether there is still present in such 
dying person, in some way or other, the materia sensibilis sacramenti, 
or at least may be presumed to be present. St. Alphonsus gives 
this splendid answer : "Quod eo casu bene adest prudens dubium, 
quod moribundus vel ante destitutionem noverit suae damnationis 
periculum vel post destitutionem ad illud advertat in aliquo lucido in- 
tervallo, in quo praesumitur velle et petere absolutionem signis vere 
sensibilibus, nempe per suspiria, motus corporis, saltern per anxiam 
respirationem, quamvis tunc ista signa Confessarius non percipiat 
(scl. ut signa certa) ; sufficient enim talia signa in tanta necessitate 
saltern ex prudenti dubio praesumta ad dandam absolutionem sub 

conditione." 

This holy teacher is of the opinion, therefore, that it may be sup- 
posed that the afflicted, either before becoming unconscious, or in 
lucid moments that broke unconsciousness, had aroused inward con- 
trition, and in some way or other (by sighs) desired to give exterior 
signs of his desire for absolution ; at least the opposite is not estab- 
lished. This supposition, though weakly supported, suffices for 
granting absolution conditionatim. As Billuart explains, this pro- 
cedure is justified not merely in the case of a dying person who has 
led a truly Christian life, but with all who have simply, by word or 



200 



THE CASUIST— VOL. II 



deed, professed their Christian faith ; indeed, as St. Alphonsus him- 
self adds, even with those who have been stricken in actu peccati, 
I e., duelli, adulterii. Hence to such a dying Catholic can only then 
not be given absolution: "Quando nulla ratione dispositus prae- 
sumi potest et praesertim, quando post vitam absque Me transactam, 
antequam sensibus destitueretur, sacerdotem ad se accedentem con- 
tumeliose reiecit" ; or, briefly expressed, "de cujus indispositione et 
impoenitentia constat." 

Resp. ad. II. The answer is obvious from the preceding argu- 
ment : Caius acted correctly, but he should have granted absolution 
sub conditioner which does not appear from his statement of the 
case. It was wrong on part of Titus to refuse absolution altogether. 
For even if this unfortunate man came to his state in actu peccati, 
he could still have been absolved sub conditione, all the more so be- 
cause the dying man perhaps actually through winking his eyes 
tried to make understood his desire for absolution. 

Resp. ad. III. It is true that according to St. Thomas the actus 
poenitentis form the materia of the Sacrament of Penance, and for 
this reason are as necessary for the administration of this Sacrament 
as water is for Baptism. But as, in extreme cases of need, one may 
employ a liquid for Baptism of which it may only be presumed cum 
tenui aliqua probabilitate that it is natural water, thus absolution 
may be given even if it can only be presumed cum tenui aliqua prob- 
abilitate that the dying man shows contrition. It corresponds per- 
fectly with the benignity of our Mother, the Catholic Church, if 
theologians teach that one may suppose the dying person desires, 
through sighs, tearful eyes, etc., to express his contrition ; it is pos- 
sible at any rate, and the contrary is not established. Of course, the 
materia is valde dubia, but it is sufficient in such a case to grant 
absolution conditionally. 



ABSOLUTION OF AN UNCONSCIOUS PERSON 201 

We should like to add the following remarks : For the practical 
procedure with dying who no longer can give intelligible signs, there 
exists no difficulty. The priest can safely adhere to the opinions 
of moralists, who, at the present time at least, unanimously main- 
tain the principles above stated. According to this, every Catholic 
deprived of his senses, and near death, may be given absolution, at 
least sub conditione, indeed even if in actu peccati he became un- 
conscious. The exception only is the dying person, de cuius indis- 
positione constat; this would be particularly the case, as moralists 
hold, if the afflicted in question, just before he was deprived of his 
senses, refused to have a priest. Should, however, such a person — 
according to Lehmkuhl (II, n. 575) — in any way, for instance 
through pressure of the hand, imploring look, or some other sign, 
even though these be of doubtful nature, manifest a change of mind, 
then he may be absolved conditionally. One may indeed go even 
further : Even if this unhappy person had refused to see a priest and 
was then deprived of his senses, it is not improbable that an inward 
change of disposition takes place within him and that he desires to 
manifest the same; the case is similar to one in which some one 
becomes unconscious in actu (alterius) peccati v. c. duelli; although 
it is always more difficult to presume a change of disposition with 
those who just previously have rejected grace, still it is not an 
impossibility. Ballerini states (Compendium Th. M. II, n. 505a) : 
"Quod absolvi non debeat nee possit, qui nulla ratione dispositus 
censeri potest, diMtebitur nemo. Verum cum dispositio praesumi 
possit vel in eo, qui sensibus destituitur\in ipso peccandi actu, vix 
apparet, quandonam futurum sit, ut nullo modo moribundus possit 
attritus praesumi." If then, for instance, a sick man to-day refuses 
the priest, and the following day the priest finds him unconscious, 
the priest should not be censured if he should give (perhaps secretly) 



202 



THE CASUIST— VOL. II 



absolution sub condition, after reciting the respective acts, though 
he discovers no actual signs of a change in disposition. 

While the practical procedure offers no difficulties, yet, considered 
theologically, the matter is not so simple. If one adheres to the 
view of St. Thomas, now held as communis sententia: that the actus 
poenitentis are materia proximo of this Sacrament, there must, in 
order to warrant absolution, manifest itself, besides the interior 
contrition, also exterior contrition and accusation aliquo modo, so 
that a materia sensibilis Sacramenti be present; at the very least 
one must be able to presume aliqua ratione this materia sensibilis to 
be present. The interior dispositio, so theologians teach, may be 
presumed, in consideration of the mercy of God, and for the outward 
manifestatio according to St. Alphonsus the anxia respiratio, sus- 
piria, ictus oculorum, etc., may be accepted. We may content our- 
selves with this, although I am under the impression many will not 
be convinced. For it may happen that a dying person lies there 
unconscious, quietly breathing ; shall I refuse him absolution for lack 
of suspiria, etc. ? Certainly not. There the opinion of St. Alphonsus 
does not entirely satisfy. I decidedly prefer to agree with other 
theologians who justify in another way the permission of absolution 
in such cases. They say a man who has lived a Christian life, or 
at least has remained a member of the true Church, seems thereby 
to have satisfactorily manifested exteriorly his intention to die as a 
member of this Church, intending consequently to receive the last 
Sacraments. This manifestatio non expresse revocata suffices to 
enable his receiving absolution conditionally. Even the refusal to 
see the priest is not always identical with a renunciation of the 
Church ; ergo: in the case where the priest has been refused, the 
argument of St. Alphonsus is more favorable. Those who favor 
the other argument must— as Lehmkuhl actually does— in order to 



ABSOLUTION OF AN UNCONSCIOUS PERSON 



203 









be consistent, require such dying person to manifest exteriorly in 
some way his change of disposition. As, however, for this even 
doubtful signs suffice, i. e., pressio manuum, oculorum obtutus 
(Lehmkuhl), there is after all hardly a difference. 

The demand that in order to warrant absolution the actus poeni- 
tentis must manifest themselves exteriorly, or that at least their 
manifestatio may be presumed in some way, applies at all events, if, 
after the sententia communis, we consider the actus poenitentis as 
materia Sacramenti — the materia indeed must be sensibilis. It ap- 
pears to me that the matter would be different if, with the Scotists, 
we view the actus not as materia ex qua, but only as conditio sine 
qua non, or as necessaria dispositio ad sacramentum, "quae," as 
Ballerini adds (1. c, n. 506 C), u non necessario debet esse sensi- 
bilis/' In order that the absolutio be valid the dispositio must be 
present, and in order that I may administer absolutio (licite) this 
dispositio in general must show itself outwardly. But in an ex- 
treme case the Sacrament is effective, if only the absolutio is given 
and the interior contrition and desire to confess are present. After 
the sententia communis, on the contrary, the Sacrament is not ef- 
fective, when the actus poenitentis qua materia sensibilis does not 
show itself outwardly. 

In order, therefore, to be able to give absolution to a dying per- 
son bereft of consciousness, I must, after the sententia communis, not 
only presume the interna dispositio, but also its externa manifes- 
tatio; after the sententia Scoti the praesumtio internae dispositions 
suffices. That the latter is easier is quite evident, and for this reason 
I agree with Ballerini (1. c, n. 506 C), who, to the question which 
opinion would better justify the granting of absolution in our case, 
repiles: aegre forte quis palmam primae (S. Thomas vel communi) 



204 



THE CASUIST-VOL. II 



sententiae tribuet. Ballerini refers here to the argument of those 
who presume the anxia respiratio, etc., as materia sensibilis. 

I am aware that the otherwise ever reliable Lehmkuhl takes the 
other view, and even expressly states (Th. M., II, n. 512) that also 
according to the opinion of the Scotists, the externa manifestatio be 
considered pro essentiali conditione sacramenti validi. 

If therefore we differ from Lehmkuhl we do not wish to consider 
our argument as conclusively decisive, but hope that it may perhaps 
induce a more thorough discussion and solution of the question. 

Ignaz Rieder, D.D» 



XLVIIL BAPTISM OF ILLEGITIMATE CHILDREN 



Antonia, unmarried, has had several children and another one is 
just born to her. Respectable persons in her neighborhood abhor 
her dissolute life, and only with great difficulty could sponsors be 
found for previous children. On that account she bids the father of 
the new born child : "We shall not bother about sponsors, for you 
may go along as such." This the father did and he became sponsor. 
Subsequently this couple married, in another church ; no one had any 
suspicion of spiritual relationship. A few weeks after the marriage 
the pair appear before the priest who baptized the last child to have 
it legitimized. 

A glance at the baptismal register informs the priest of the whole 
situation ; he inquires about the spiritual relationship and finds that 
no dispensation has been obtained; the marriage, therefore, is null 
and void. The convalidation of the marriage was not difficult, and 
took place in accordance with the rules; nothing further need be 
said about it here. The case is submitted only to suggest caution in 
baptizing illegitimate children, and to inquire whether some pre- 
cautions should not be employed in Baptisms of this kind, in order 
to prevent such contingencies; also whether, by omission of some 
ceremonies, such parents at the Baptism of their children should be 
impressed with the Church's detestation of their sin. 

The ecclesiastical law does not prescribe precautionary measures 
nor omission of ceremonies. The Churdi gives the priest a free hand 
in these matters. But I am of opinion it would not be against the 
spirit of Canon Law, which imposes irregularity on the illegitimate 
birth, if the priest, with due prudence, determines upon some disci- 

205 



206 



THE CASUIST— VOL. II 



plinary measures within lawful bounds. The moral sentiment of 
the community would certainly thereby be benefited. 

In many localities only a woman may become sponsor at the 
Baptism of illegitimate children. This would exclude the occur- 
rence of a case like ours. This usage is not contrary to the Triden-, 
tine, which is satisfied with one sponsor. In some parishes illegiti- 
mate children— urgent cases excepted— must be brought in the 
evening for Baptism. In cities and manufacturing centers it may be 
difficult to carry out such measures, but in country parishes they can 
be carried out, and have frequently been carried out— as priests have 

told me — with good success. 

Alois Pachinger, D.D. 



XLK. PASTORAL PRUDENCE 

About this virtue, so necessary in our difficult times, there can not 
be too much said or written. Needless to say, pastoral prudence 
consists in the priest's capability and skill to view circumstances and 
conditions objectively, and to employ the means at his disposal that 
in all he does or avoids to do, especially in difficult and delicate cases, 
he promotes and achieves the aims of his office. 

The sentence of Holy Scripture: "Initium sapientiae titnor 
Domini" (P. no, 9) finds full application upon pastoral prudence. It 
points out one of the fundamental conditions without which there 
can be no genuine pastoral prudence. For holy fear is interior 
reverence, pious deference to God and respect of His holy Will, and 
it leads to conscientiousness, to a blamelessly moral, even perfect, 
life. Only a morally irreproachable priest can possess pastoral 
prudence; the more perfect his virtue, the more will his prudence 
increase. Of the opposite, Holy Writ tells us : "In animam malevolam 
non introibit sapientia, neque habitabit in corpore subdito peccatis" 
(Sap. 1, 4). There belongs also to the priest's moral rectitude con- 
tinuous study, as the fulfilment of a positive obligation of his state of 
life. 

Where these fundamental conditions prevail, there also will the 
virtue of prudence find an agreeable abode in man, and will be 
bestowed if solicited. 

The particular foundations of prudence are modesty and humility, 
its chief obstacles self-satisfaction and conceit. Abscondisti a sapien- 
tibus et revelasti parvulis. The modest and humble man will not 
jump at his first conclusions as the correct and infallible ones, he will 
distrust himself and use mature deliberation. Of this deliberation 



207 



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THE CASVIST-VOL. II 



PASTORAL PRUDENCE 



209 



St. Bernard writes : "Prudens pastor omne opus suum trina quadam 
consideration praeveniet. Primum quidem, an liceat, deinde, an 
deceat, postremo, an et expediat. Nam etsi constet in Christiana 
utique philosophia, non decere, nisi quod licet non expedire, nisi quod 
decet et licet: non continuo tamen omne, quod licet, decere aut 
expedire consequens crit." The modest and humble man will not 
content himself, in difficult and delicate cases, with his own delibera- 
tion ; he will seek, and listen to, the views of others, their opinions 
and counsels. On this subject St. Bonaventure has this to say: 
(De Sex alis) "It is a great act of wisdom to accept advice readily, 
and to ask for it modestly. Thereby a superior attains a threefold 
advantage : he gains, first of all, a greater certainty-if others are of 
the same opinion-that he does not err ; secondly, he is less liable to 
blame, if he does not succeed in what he has done after listening to 
the counsel of prudent and righteous men ; thirdly, as reward for 
his humility he will receive a special enlightenment from God in 
order to avoid unforeseen obstacles and to find appropriate means. 
Furthermore those whose opinion or advice he has secured will sup- 
port him, and will defend his course, whether or not it is attended 

by good results." 

It is not absolutely necessary that he, whose opinion or advice we 
seek, should be specially distinguished in knowledge and experience. 
He who is not personally, or only slightly, interested in a matter 
often sees in it some circumstances that escape the one deeply con- 
cerned in the same. It will not be beneath the dignity of a learned and 
experienced parish priest, in difficult and delicate cases, or when 
introducing reforms, to ascertain his young curate's views. This 
will also tend toward the instruction of the younger priest ; at any 
rate the superior will avoid the dissatisfaction of the curate, and 
avoid his expressing disapproval to parishioners, if the parish priest 



makes changes in the pastorate which become known to the curate 
only as a fait accompli, especially if new duties for the curate are a 
result of the innovation. 

Canon Anthony Skocdopole, D.D. 



L. INVALID SPONSORSHIP 



Maria, a Catholic girl, has had improper relations with Hermann, 
a Hebrew, which remained not without consequences. At the Baptism 
of her first child three members of her family were present, the 
elder brother in the capacity of sponsor. Some time after, Maria's 
family severed all connection with Maria, because she persisted in 
her resolve to marry the Hebrew Hermann. The latter accepted the 
Catholic faith in order to marry Maria; Soon after a second child 
was born to them without Maria's family knowing anything about it. 
As there was no sponsor at hand, Maria had her younger brother 
entered as sponsor, and afterward informed her elder brother of the 
fact, who, in turn, acquainted the younger brother of the honor that 
had befallen him. As there seemed nothing else to do the latter 
declared himself willing to assume the sponsorship, which his sister 
had imposed upon him without his knowledge or desire. Is this 
sponsorship valid in facia ecclesiae? 

Answer. No. The sponsorship can of course take place per 
procuratorem, but the actual sponsor must be made aware of his 
appointment, give his consent thereto, appoint the proxy, or direct 
the appointment to take place through another ; for the position of 
sponsor imposes certain obligations, the voluntary assumption of 
which requires a foreknowledge and assent as most necessary con- 
ditions. This is the self-evident teaching of all moralists ; thus Lehm- 
kuhl (Theol. Mor., II, n. 758) : Requisitur pro patrinis, ut valide 
fuerint patrini; igitur ut habuerint animutn gerendi munus patrini. 
Goepfert, in his Moral Theology, III, p. 52, declares : "In order that 
some one really be sponsor, and assume spiritual relationship, it is 
requisite that he or she should have the intention of undertaking the 



210 



INVALID SPONSORSHIP 



211 



sponsorship ; hence it is not contracted in an error in cor pore, if there 
is a mistake in the one baptized, or if some one has been appointed 
to be a sponsor against his knowledge or wish, and only afterward 
apprised of the fact. Esser holds : "It is permissible for the sponsor 
to have a proxy at the sacramental act; he must, however, have 
knowledge of his selection as sponsor, and have the intention of 
becoming sponsor; otherwise spiritual relationship does not exist." 
Since the brother had not the least idea that he was named as 
sponsor, since, moreover, in consequence of the severed relations, not 
even his consensus praesumptus could be supposed, there can be no 
question of a valid sponsorship. The subsequent consent to the 
condition of things has no lawful effect as the sponsorship occurs in 
ipso actu baptismi, and at this moment also the consent must be 
present ; a kind of sanatio in radice per subsequentum consensum is 
impossible, as the act of baptizing, to which the sponsorship is at- 
tached, no longer lasts; here may be applied the inversion of the 
axiom : Infectum factum fieri nequit. 

J. Gfollner, D.D. 



LI. TELEPATHIC PHENOMENA 



P. Lodiel, S.J., published, in the Etudes des Fires Jesuites (Oct. 
5, 1900, p. 49), a very interesting treatise on telepathy. The author 
states first of all that in recent times telepathy has again received 
much attention, and refers for France to the Annales des Sciences 
Psychiques, for Italy to the Civilta Cattolica, for England to the 
Proceedings of the Society for Psychical Research, etc. The most 
important work on telepathy is that by Gurney, Myers and Rod- 
more {Phantasms of the Living), which appeared in London in 1890. 
Scholars of various philosophical and religious views are of the 
opinion that the phenomena recorded in this work, probed most 
thoroughly and confirmed by reliable witnesses, can not be doubted. 
Of the many phenomena there recorded we can, for lack of space, 

only quote a few. 

In the year 1855 Captain Colt, whose brother Oliver took then 
part in the siege of Sebastopol, had the following apparition: "In 
the night of September 9," so Colt relates, "I was suddenly awak- 
ened, and beheld by the window of my room, quite close to my bed, 
my brother in a kneeling posture. I thought at first it was an 
illusion, caused perhaps by moonlight. But as I glanced at my 
brother again I saw that he was looking at me with a loving, yet sad 
and imploring expression in his eyes. Thereupon I arose and stepped 
to the window to investigate. I convinced myself that there was no 
trace of moonlight, on the contrary it was quite dark and rain lashed 
the windows. I turned around and had my brother again before me, 
looking sad and imploring help. I noticed then a wound in his right 
temple, whence blood flowed copiously. His face was pale as wax. 
It was a vision," says Mr. Colt, "which I shall never forget to the 



212 



TELEPATHIC PHENOMENA 



213 



end of my days." A fortnight later news came from the Crimea 
that in an assault Oliver Colt was struck by a bullet in the right 
temple ; thirty-six hours after his fall he had been discovered among 
a heap of corpses, in a kneeling posture. 

A similar occurrence was reported during the Mexican war. One 
morning the mother of a young officer was seen to weep bitterly. 
When asked the reason of her grief she said : "Alas ! I am to lose my 
son. This morning, as I greeted his portrait, as was my daily cus- 
tom, I saw that one of his eyes had been shot out and blood was 
streaming over his whole face." Soon after they were informed of 
this officer's death. He had fallen at the siege of Puebla, shot in 
the left eye, at the very time that his mother had had the apparition. 
Still more remarkable is the following occurrence : Young Philip 
Weld was a pupil at St. Edmund's College, near Ware. He was a 
well behaved, good boy, and for this reason greatly beloved by his 
teachers and fellow students. On April 16, 1845, in vacation time, 
some of the boys went for a row on the Ware. Philip had finished 
a retreat and received Holy Communion that morning. He gladly 
joined those who made up the boating party. On the return trip of 
the boat Philip asked for an oar to do his share of the work, when 
a sudden turn of the boat threw him into the water, and all efforts to 
rescue him were in vain. Philip's corpse was carried back to the 
college. Dr. Cox, the rector, was inconsolable over the accident; 
he had loved the boy dearly and he thought of the anguish of the 
family at losing so beloved a son. He decided to go and break the 
sad news to the bereaved parents. The following morning he drove 
for this purpose over to their home at Southampton. As he neared 
the house the father came out to meet him. Dr. Cox alighted and 
was about to address him, when Mr. Weld anticipated him, saying : 
"It is useless to conceal anything from me, I know that my son Philip 



214 



THE CASUIST— VOL. II 



is dead." "How is that possible?" asked the priest. "Last even- 
ing," replied Mr. Weld, "I went for a walk with my daughter 
Catharine. Suddenly I beheld my son, passing on the opposite side 
of the street in company with two persons, one of whom was garbed 
in black. My daughter saw him first. She exclaimed : 'Oh, father ! 
did you ever see any one who so closely resembled our Philip?' 
'Resembled Philip ?' said I ; 'why, it is Philip himself.' We crossed 
over toward the three men and I saw Philip happily smiling at the 
one dressed in black. As we came closer all three suddenly vanished. 
On my return to the house I said nothing to my wife about the 
apparition so as not to frighten her, but the following day I awaited 
with great anxiety the mail. To my great joy there was no letter 
for me and my fears began to be allayed. Then I saw you coming 
toward the house. Now I know that you have come to tell me of my 
dear son's death." One may imagine Dr. Cox's amazement! He 
asked Mr. Weld if he had ever before seen the man in black. 
"Never," replied Mr. Weld, "but his features are so impressed upon 
my mind that I should certainly recognize him, if I were to meet 
him again." 

Dr. Cox then related the story of the sad event, which had oc- 
curred precisely at the hour in which the father and daughter had 
seen the vision. The remembrance of the glad smile of their loved 
one afforded them great consolation. Mr. Weld arranged for his 
son's funeral, and at the burial he closely examined the faces of the 
clergy; but none of them resembled the black figure of the vision. 
Four months later Mr. Weld went with his daughter to visit a 
brother who dwelt at some distance. Incidentally he called on the 
local clergyman. While waiting in the reception room he inspected 
the pictures on the walls. Suddenly he stopped before one of them 
— there was no name on it — and exclaimed : "This is the man who 



TELEPATHIC PHENOMENA 



215 



was walking with Philip !" The priest, who now entered, said the 
picture was that of St. Stanislaus Kostka. Mr. Weld was deeply 
moved ; he remembered his son's special devotion for St. Stanislaus ; 
he thought also of how his late father had been a great benefactor of 
the Jesuits and hoped that the saints of that order would in a special 
manner protect his family. 

It should be noted that both father and daughter asserted they had 
never before in their lives had visions or hallucinations ; furthermore 
the apparition did not occur at night, not in a dream, but in bright 
day light, in a public street, to two different persons, thoroughly 
credible, at one and the same time. 

In the year 1898 there took place in New York a double appari- 
tion, the same person showed himself in two different remote places, 
at the same hour. H. M., as is related, awoke suddenly one night 
and saw before him his brother (who lived at a distance). The latter 
greeted him and said : "I am dying ; you are to dispose of my fortune 
in the following manner," then, having given full particulars of the 
disposition, the vision vanished. H. M. informed his wife of what 
happened. A few hours later a telegram was received announcing 
the death of the brother ; it had occurred at the time of the vision. 
H. M. started out at once to carry out the wishes of the departed 
brother. On the way he meets another brother, from another town. 
He, too, had had the same vision, at the same hour and with the same 
details. Arrived at the place of death they were told that the de- 
parted shortly before his demise had, as if in delirium, conversed for 
some time with absent persons. 

How are we to explain these and similar phenomena ? Some seek 
to explain them as a morbid, nervous, hysterical condition. But the 
persons to whom these apparitions happened were in perfect health. 



2l6 



THE CASUIST— VOL. II 



TELEPATHIC PHENOMENA 



217 






How can the sick, the dying, at such distances produce perfectly plain 
pictures, intelligible conversations? 

Still less does the matter admit of explanation through hypnotism, 
suggestion, or magnetism. No one was near to influence the persons 
who have had these visions, and who could exert any such influence 
at such great distance ? Nor has spiritism any explanation to offer. 
In all these cases no one asked for information, or did anything to 
obtain it, such as is done in spiritism; the information was offered 
unsolicited. Nor was there any medium to negotiate connection 
parties. Moreover the dead have not the gift of speech, and the 
Catholic Church rightly teaches that there is no natural connection 
between the dead and the living. For this reason she has at all times 
constantly discountenanced the summoning of departed to satisfy 
curiosity. Even ardent spiritists like Allan Kardec, Eliphaz, Levi, 
Alexandre Aksakoff, admit that the dispositions of summoned spirits 
often are treacherous and immoral, a fact which demonstrates a 
co-operation of evil spirits. 

Others, like Mr. Cookes, who attempt to explain everything by 
matter, presume that from the human brain innumerable vibrations 
are propagated in all directions and that these vibrations bring about 
such visions. But, let us ask what healthy person has ever had the 
power to produce such visions ? How could the sick and dying alone 
have it? And how is it that the vibrations just reach the concerned 
person and none other? 

There must, therefore, be supposed something supernatural. Only 
thus the image ofliving persons and their conversations can be ex- 
plained. What then is this supernatural element? In spiritism evil 
spirits without doubt participate ; this is admitted even by spiritists 
themselves, as stated above. In telepathy this is not the case, as 
frequently something good, providential, sacred even, proceeds there- 



from. We are confirmed in this view when we see in the Lives of 
the Saints that such visions occurred to them. Thus, for instance, 
in the life of St. Francis de Chantal we read that at the time when 
the Baron was dying, his sick father, many miles from the Baron's 
deathbed, beheld a number of fine looking youths leading his son into 
a distant country. The son approached the father, and touched him 
gently upon the shoulder, as if to take leave from him. The vener- 
able old man said under tears: "My son is dead!" A servant, 
despatched to make inquiries, met the messenger bringing the news 
of the death. It was found that the son had died precisely at the 
moment when the vision appeared to the father. 

At one time when St. Alphonsus Liguori was preaching in the 
small town of Arienzo, he suddenly interrupted his discourse and 
said to his congregation : "Let us pray an Our Father at the peaceful 
passing away of Bishop Lambertini of Caserta." A few days later 
news came that the bishop had died exactly at the time when St. 
Liguori interrupted his sermon. 

In the process of beatification of St. Philip Neri various instances 
were vouched for by credible witnesses, that the saint had beheld 
friends and disciples ascending into heaven. 

In the year 1570 forty Jesuits embarked at Lisbon to go to Brazil 
as missionaries. Near the Island of Patmos they were captured by 
Calvinistic pirates and cruelly put to death on account of their 
faith. At the same hour St. Theresa beheld forty martyrs with palms 
in their hands and surrounded with glory (among them was a cousin 
of hers) ascending to heaven. She mentioned this vision to several 

persons. 

Similar visions are found in lives of many saints. The intention 
of God in them is probably the glorification of His faithful servants, 
the consoling of the bereaved and the strengthening of them in the 



218 



THE CASUIST— VOL. II 



faith. These visions are incontestible proof that there is a higher 
immaterial world and that between the higher and the lesser world 
there exists relation, as even the English Society for Psychical Re- 
search is forced to admit. The materialists of our day would deny 
the existence of the soul after the death of the body. Telepathy 
offers facts which can not reasonably be doubted, and which not 
only prove that with death not everything is at an end, but even give 
us some information about the fate of souls after death. 

J. Raef. 



LXL THE JURISDICTION TO HEAR CONFESSIONS 

Caius, an alumnus, is sent from his seminary to a parish not far 
away to assist on a feast day. It being Paschal time, Caius received 
from the bishop jurisdiction to hear confessions, but explicitly for 
this day only. Caius therefore heard confessions, held services and 
made ready to return to the seminary. But suddenly the parish 
priest is taken ill, and he asks the alumnus to remain another day, 
because on that day also will people come to confession. Caius 
objects that he has jurisdiction only for this one day, but the parish 
priest says: "I will give you jurisdiction. I have iurisdictio ordi- 
naria and can therefore delegate you, the same as I could for as- 
sistance at marriage. Of course I can only delegate you for my 
parishioners, not for the diocese as the bishop can. You will have 
potestas ordinis through Holy Orders and iurisdictio delegata from 
me." This argument does not quite convince Caius, for if that were 
so, he thinks, for what purpose did the bishop restrict his jurisdiction 
just to this particular day? Yet, he satisfies his conscience by 
reasoning : This is a case of necessity, and if the bishop knew of it 
he would most certainly give me jurisdiction; I may then rightly 
presume the jurisdiction. 

In the worst case — he reasons further — there prevails error com- 
munis so that the Church supplies the jurisdiction if absent. He 
remains, hears confessions the following day, and returns to his 
seminary. 

Questions. — I. What is to be thought of the parish priest's argu- 
ment, and what of the arguments of Caius? 

II. Were the absolutions given by Caius valid or not ? 

In order that the absolution in the Sacrament of Penance should 

219 



220 



THE CASUIST— VOL. II 



be valid, there are necessary for the priest hearing confession, besides 
potestas ordinis, also approbatio and iurisdictio. The approbatio is 
the authoritative declaration that the priest in question is capable, 
scientifically and morally, of hearing confessions, the iurisdictio is 
here the bestowal of the faculty to render decisions pro foro intemo. 

That approbatio as well as iurisdictio are necessary is evident from 
the Tridentine (Sess. 14, cap. 7, and sess. 23 de ref. cap. 15), 
iurisdictio is necessary iure divino, approbatio however iure ecclesi- 
astico, as the latter was first introduced by the Tridentine. Although 
frequently both are given to the priest uno eodemque actu, yet it is 
necessary in many cases that approbatio and iurisdictio should be 
precisely distinguished. Naturally approbation precedes jurisdiction, 
for only to the priest declared capable are assigned certain faithful 
as subditi, over whom he is to exercise jurisdiction. Presuming as 
known the terms iurisdictio ordinaria and delegata we will pass on 
to answer the questions. 

Ad. I. The parish priest's argument is not valid. Of course he 
himself has iurisdictio ordinaria and can, if nothing prevents, dele- 
gate another priest, for instance to perform marriage. But for hear- 
ing confession there is not merely iurisdictio necessary, but also 
approbatio, and the latter per Episcopum loci. 

Caius had received approbatio and iurisdictio uno actu from the 
bishop, but only for one day, for the second day both were lacking to 
him. The parish priest could not give jurisdiction to Caius because 
the approbation which the Tridentine requires was lacking. Previous 
to the Tridentine the matter would have been different. The matter 
is stated by Lehmkuhl (II, n. 371) as follows: Quamquam ex 
natura rei quilibet, qui ordinariam potestatem habeat, earn alteri 
communicare potest; nihilominus suprema auctoritate ecclesiastica, a 
qua tandem omnis iurisdictionis exercitium atque valor pendet, ita 



THE JURISDICTION TO HEAR CONFESSIONS 



221 



constitutum est, ut nemo delegatam iurisdictionem in S. poenitentiae 
tribunali exercere possit — saltern quoad confessiones saecularium — 
nisi approbationem ab Episcopo (loci) acceperit. Quo factum est, ut 
delegatio ab Us, qui Episcopo inferiores sunt, data seu danda fere 
inutilis evaserit. 

Since the approbatio per Episcopum loci is always necessary, a 
parish priest can not delegate a priest, who has approbation and 
jurisdiction in another diocese, to hear confessions. Exempt from 
this law are only the parish priests themselves (and a fortiori the 
bishops) in regard to their subditi, so that they can hear their 
parishioners' confessions also in another diocese without approbatio 
per ordinarium loci, because the Tridentine itself excepts from this 
law those in possession of a parish benefice. 

Now let us pass to Caius' views. He believed he could with per- 
fect right presume the iurisdictio. But — and this is taught unani- 
mously — the approbatio and iurisdictio can not be presumed. For 
the validity of the absolution the Tridentine requires an approbatio 
actu existens and hence an approbatio praesumta suffices not at all, 
no matter how probable or certain it may seem that the bishop would 
grant it. u Approbatio, quae ad validam confessionem requiritur, 
vere data (et confessario notfficata) esse debet, non suMcit prae- 
sumptio approbations dandae 3i (Lehmkuhl, II, n. 384, 4). If a 
priest therefore desires an extension of his jurisdiction from the 
bishop, he must not, no matter how certain it may be that the bishop 
will grant the extension, hear confessions before receiving positive 
information (written or by reliable messenger) that the jurisdiction 
has been prolonged. 

Perhaps in Caius' favor is his last argument, that there is an 
error communis and that therefore the Church supplies the defect. 
The question is, when does the Church supply the lacking jurisdic- 



222 



THE CASUIST— VOL. II 



tion ? Theologians give a unanimous answer to this : Ecclesia sup- 
plet, si adest titulus coloratus et error communis, but both must be 
present at the same time. The titulus coloratus is present if, though 
the exterior act through which jurisdiction is bestowed, has taken 
place, it is invalid on account of a secret fault, for instance if ex- 
teriorly a parish were quite lawfully assigned to a priest, but the 
entire act were invalid on account of secret simony. If the juris- 
diction has not been given at all, or if, though given validly, it has 
already expired, yet the people suppose the priest has jurisdiction, 
then there is present titulus putativus, together with error communis. 
It is plain that in our case Caius had no titulus coloratus, but only 
putativus, i. e., there is present therefore error communis sine titulo 
colorato. 

. For this case the theologians hold : Si adest putativus et error 
communis, non est certum J an Ecclesia sup pleat. Lehmkuhl writes 
thus: "Si sine titulo colorato solum error communis adest, multi 
quidem putant Ecclesiam propter commune bonum, cui potissimum 
publico auctoritas provideat, etiamtum supplere; et quum nullcmt 
legem ecclesiasticam habeamus, quae id fieri statuat, neque consensus 
Doctorum adsit, totum dubium manet." 

Ad. II. From the aforesaid there follows the answer to the sec- 
ond question and this answer is: It is not quite certain that the 
absolutions given by Caius on the second day were valid. For, 
although Sabetti, S.J., says (Compendium Theol. Mor., n. 773) : 
if Probabiliter etiam sup plet Ecclesia, si adsit error communis sine 
titulo colorato, sed cum titulo tantum existimato (= putativo). 
Eadem enim urget ratio ac in casu praecedente, cum etiam in hac 
hypothesi innumerae animae perire possint. Ita multi et graves 
theologi apud S. Alphonsum, n. 572; and although A. Eschbach 
(Anal. Eccl., 1897, P- 5°5) writes: "Jam vero sententia probabilior 



THE JURISDICTION TO HEAR CONFESSIONS 



223 



tenet, Ecclesiam supplere, si error adsit communis etiam sine titulo 
colorato. Caeteroquin in materia sumus favorabili in qua ampliatio 
datur/' by all this we do not get beyond the probabilitas, and where a 
Sacrament is concerned, probabilitas is of little use to us (extreme 
cases of necessity excepted), what we need is certitudo. 

What is to be said of Caius' action? Objectively he has committed 
a grievous fault. It is not even allowed to hear confessions, though 
titulus coloratus and error communis are present and the Church 
therefore surely supplies the defect, when one knows he has no juris- 
diction, but only a titulus coloratus. Even more unlawful is it if 
only error communis is present, when it is not certain that the Church 
supplements. "A fortiori non licet Mi, qui omni potestate eiusque 
titulo se destitutum novit, propter solum errorem communem agere, 
turn quia usurpat potestatem, quam non habet; turn quia eos, quorum 
interest ipsius actum validum esse, periculo atque damno exponW 
(Lehmkuhl). To what extent Caius was at fault subjectively, we 
are unable to determine, but it must be admitted that he took the 
matter too lightly. 

The claim will hardly be made that there was a probabilitas of 
valid absolutions, and that cum iurisdictione probabili one could 
lawfully absolve. The answer to this would be : In our case there 
was not only iurisdictio probabilis absent but there was nulla iuris- 
dictio, probable it is only that the Church supplied the defect. 

Finally, the question suggests itself, what was to be done after 
Caius discovered his error? Were the people to be informed that 
they were only apparently absolved, and that they were obliged to 
procure certain absolution? This question is by Berardi (Praxis 
Confess., n. 1053, IX) answered thus : "There exists no obligation in 
general to compel the faithful to repeat confessions made bona fide' 9 ; 
and in support Berardi refers to the decision by the Congr. Concilii, 



224 



THE CASUIST— VOL. II 



of December n, 1683. The matter is to be left at rest; in the worst 
case the faithful will have these sins indirectly remitted in their 
next confession. It would be different if the faithful themselves 
found out that these confessions were of doubtful validity. Some 
theologians are of the opinion that even in this case the faithful 
need not be required to repeat their confessions, but the decision 
quoted by Berardi says : Si ipsi confessi hoc resciverint vel ed de 
invaliditate confessionis dubitaverint, eosdem teneri reiterate con- 

fessionem. 

Ignaz Rieder, D.D. 






LIU A MUSICIAN'S CO-OPERATION BY PLAYING IN 
PROTESTANT CHURCHES AND AT DANCES 



In a small town there is an orchestra of which Torquatus is a 
member. He is a man with family and obtains his sole income from 
this profession, making a fairly good living. He is often called upon 
to play at Protestant funerals, also at dances — not infrequently im- 
modest dances. The leader of the orchestra declares that Torquatus 
must play at all engagements or be dismissed. Torquatus, a con- 
scientious Catholic, asks his confessor what to do under these cir- 
cumstances. What answer should be given him ? 

If Torquatus can find other employment, by which he can support 
his family respectably, he should be advised, without doubt, to quit 
the orchestra. If this is not possible, then the question is whether 
the situation excuses him in co-operating, in the manner mentioned, 
at Protestant funerals and at dances. The twofold danger, of injur- 
ing his own soul and of giving scandal to others and co-operating 
in their sins, appears to prohibit him from so doing. 

As regards the actual danger it should not be difficult for a con- 
scientious father of a family to render this danger very remote, 
especially by purity of intention and by vigilance and prayer. 

His participation in an act of non-Catholic worship, and in the 
sins of others on the dance floor, appears to be more important. For 
this reason these two points may receive closer attention. 

I. As regards playing at Protestant funerals, a distinction must 
be made as to whether the co-operation must be regarded as formal, 
or merely as material. Such participation is formal if it forms part 
of the forbidden ritual, or if it is part of the same, as for instance 
playing the organ, or singing at non-Catholic services. In such cases 

225 



226 



THE CASUIST— VOL. II 



the participation can not be excused for any necessity whatever, be- 
cause it is essentially wrong. In this sense moralists prohibit Cath- 
olics from singing, making responses, or playing the organ at non- 
Catholic services (Compare Marc, n. 433 (2) ; Lehmkuhl, n. 656). 

If the orchestra, of which Torquatus is a member, plays funeral 
marches, etc., at Protestant funerals, the same as at other purely 
profane occasions, this co-operation can as little be considered as 
formal participation as that of mourners accompanying a funeral; 
both could be considered only material participation, for this reason 
taking part in a Protestant funeral procession is allowed for just 
reasons, for example as an act of civic decency. "Funus deducere 
usque ad fores templi vel coemeterii censetur civile obsequiunt 
(Marc, n. 432, 2). And (Lehmkuhl, n. 656, 2), permits "Instru- 
mentorum musicorum concentus inter ritum quidem religiosum, sed 
non ut ejus pars vel ornamentum, sed e. g. in honorem principis 
acatholici praesentis" 

2. The second question is whether Torquatus' musical co-operation 
at dances — not infrequently immoral dances — is not formal co- 
operation, and as such positively forbidden. "Co-operatio formalis 
ad peccatum alterius semper intrinsice mala est, atque ideo num- 
quam licita" (Aertnys, I, II, n. 77). The same authority says: 
"Co-operatio formalis est vel ex fine operis ex fine operantis" 
(n. 76). The latter is evidently not the case with Torquatus, who 
certainly does not intend the sins of others. As regards the finis 
operis the rule is : t( Co-operatio est formalis, quae concurrit ad malam 
voluntatem alterius praestando operam, quae suapte natura ad malum 
ordinata est vel pars illius est" It would be difficult to establish 
that the playing of a musical instrument, even in the rendering of 
an immodest piece, is to be considered as an act quae suapte natura ad 



A MUSICIAN'S CO-OPERATION 



227 



malum ordinata vel pars illius est. It would be quite another matter 
with the singing of shameful songs. 

Even if we admit that the co-operation of Torquatus is merely 
material and therefore in case of need not in itself prohibited, yet it 
appears that his co-operation at such dances is a grave scandal to 
all who learn of it, this so much the more as he is looked upon as a 
righteous man. This aspect is not to be overlooked, and for this 
reason Torquatus is obliged without doubt to prevent, as far as 
possible, such scandal by making known in his circles that he only 
unwillingly and under pressure of circumstances plays at Protestant 
funerals and at questionable dances. If he does this then he is 
hardly obliged, for fear of giving scandal, to quit the orchestra, "cum 
charitas, vi cujus scandalum tollere deberet, non obliget cum tanto 
incommodo" (Aertnys, n. 317). 

Although in the interests of morality it were greatly to be desired 
that hall keepers, and others, who arrange dances and amusements 
dangerous to morals, were unable to find musicians and dancers, 
yet we must not impose this as duty upon an individual as in the case 
of Torquatus, when the principles of morals do not appear to compel 
under such great difficulties. 

P. John Schwienbacher, C.SS.R. 



5 









LIV. FORGETTING TO GIVE ABSOLUTION 

Caius was called to a dying person to administer the last Sacra- 
ments. He heard the dying man's confession, gave him Holy Com- 
munion, Extreme Unction and general absolution. Only after re- 
turning home did it occur to him that he had forgotten to give 
sacramental absolution. Again he went to the sick man, made with 
him an act of contrition and, without saying anything to him about 
absolution, pronounced the words of sacramental absolution over 
him. 

Did Caius act correctly? Or rather let us ask: i. Was Caius 
bound to return and absolve the dying man? 

2. Was the absolution by Caius valid, although more than an hour 
had elapsed between confession and absolution? 

3. Should Caius not have informed the sick man that he was now 
absolving him, in order to make the absolution valid? 

The answer to all these questions is simple and requires only a 
brief argument. 

1. The duty of absolving the dying validly, is based upon two 
reasons, firstly, to make sure, as far as possible, the eternal salva- 
tion of the dying ; and, secondly, because according to divine law the 
sins of baptized, where possible, must be subjected to the power of 
the keys. 

This subjection has its final in the sacramental absolution; the 
divine law therefore has not found its accomplishment when the 
penitent has confessed his sins, but then only when the priest has 
absolved the confessed sins by direct exercise of the power of the 
keys. The fulfilling of this divine command is particularly urgent 
in danger of death; for this reason then the duty of the sinner to 

228 



FORGETTING TO GIVE ABSOLUTION 



229 



confess, and the duty of the priest to absolve, become most im- 
portant. 

In our case the penitent had fulfilled his part; the confessor 
through an oversight had not fulfilled his. Undoubtedly he must 
repair the defect unless he be excused by an important reason. If 
only the priest's duty is considered, the question whether the time 
it will take to return may be a sufficient reason for an excuse must 
depend upon the distance, and also upon the fact whether other press- 
ing business would be delayed by returning to the patient. The 
reason for an excuse in this direction need not be a very weighty one. 

Of more weight will have to be the ground for excuse if solicitude 
for the greater safety of the sick man's salvation comes into con- 
sideration. Should the least doubt arise as to this safety, the defect, 
although unintentional, must be rectified even at the cost of con- 
siderable inconvenience. The question is then, do Holy Communion 
and Extreme Unction offer sufficient certainty? 

With regard to Holy Communion its effect to sanctify those who, 
without their fault in the state of sin, receive it with previous attri- 
tion, is probable but not certain. Caius therefore can not excuse 
failure to return to the dying man with the fact of having admin- 
istered the Holy Eucharist. In regard to Extreme Unction its effect 
is morally certain (Compare the author's Theol. Mor., II, n. 568). 
As, however, some authors raise doubt even regarding this Sacra- 
ment, then these doubts, even if very feeble, are sufficient reason in 
Caius' case to decide upon bestowing the absolution, especially in the 
case of a dying man, when the maxim should apply: Nulla sat magna 
securitas, ubi periclitatur aeternitas. 

2. That an interval of one hour elapsed between confession and 
absolution does not make the latter invalid. The relation of matter 
and form is to be determined variously according to the nature of the 
different Sacraments. Just as in profane courts accusation, trial 






*3° 



THE CASUIST— VOL. II 



and sentence do not necessarily take place in one session, neither is 
this necessary in the tribunal of penance ; although a long interval — 
as lawful in the former — would not always be without danger in the 
latter case. St. Alphonsus, referring to the opinion that absolu- 
tion is valid even an hour after confession, says (lib. 6, n. 9) : 
"Videtur accepta esse apud omnes" 

3. The words just quoted refer to the absolution administered to 
the penitent without further advice or act; there was even greater 
certainty since Caius again awakened contrition with the dying man. 

As far as the connection between matter and form of the Sacra- 
ment is concerned, all doubt as to its validity is precluded. Doubt 
of its validity could only arise in the event that perhaps the penitent 
meanwhile had committed a grievous sin. In that case of course 
another confession and a new conscious intention must enter for the 
reception of absolution. But in our case we may regard this sup- 
position as excluded, because the probability is that the sick man 
would have accused himself of it. Nevertheless Caius would have 
done well to admonish the patient that he was about to absolve him. 
(No need to mention his previous forgetfulness.) There is nothing 
unusual about a repeated absolution of the dying. As, however, it is 
a matter of the actual reception of the Sacrament, it is always appro- 
priate that the recipient actu be aware of it, when he will receive it 
with greater devotion, and consequently with greater fruits, unless 
there are weighty reasons against. Caius hardly committed a fault 
in not observing this method, yet it would have been better, if 
feasible, to make the sick man aware that absolution was being 
given. 

Aug. Lehmkuhl, S.J. 



LV. SIMPLE VOWS AND RESERVED CASES 






At a gathering of regular clergy the point was argued : "an sim- 
pliciter professi incurrant casus in Ordine reservatos?" As no gen- 
erally satisfactory answer was given I will essay to present a few 
data which may contribute toward elucidation and solution of this 
question. To set aside all doubt as to who is included in the term 
simpliciter professi I would preface my remarks with the following 
quotation: "Pius IX. per Encyclicas Litteras de die 19 Martii, 1857, 
s. Congregationis super statu Regularium de Votorum simplicium 
professione, incipientes 'Neminem late? statuit atque decrevit, ut 
in religiosis virorum familiis in quibus vota solemnia emittuntur, 
peracta probatione et novitiatu ad praescriptum S. Concilii Tridentini, 
Constitutionum ApostoL, etc. Novitii vota simplicia emitterent post- 
quam expleverint aetatem annorum sexdecim, etc. . . . Pro- 
fessi post triennium a die, quo vota simplicia emiserint, computan- 
dum, si digni reperiantur, ad professionem votorum solemnium ad- 
mittantur" (Bizzarri, Collectanea in usum Secretariae s. Congr. 
Episc. et Regul., p. 854). 

In these Litterae Encycl. there is only mention, therefore, of sim- 
pliciter professi who, in regular orders for men with solemn vows, 
take after their novitiate the simple vows ad triennium. 

The solution of our question appears to depend chiefly upon the 
fact whether these simpliciter professi vere et proprie are to be re- 
garded as religiosi, and whether they are consequently bound to all 
obligations and duties of the same, unless special privileges or dis- 
pensations in the rules of that order permit of mitigation or excep- 
tion. 

This matter is dealt with by Bizzarri {apud Piatum Mont en- 






231 



T, t— 



232 



THE CASUIST— VOL. II 



sent; Praelectiones Juris Regularis, torn. I, ed. II, p. 9) as fol- 
lows: "In genet ali conventu diei 15 Junii, 1856, penes s. Congr e- 
gationem super Statu Regularium disputatum est, an qui in 
Ordinibus religiosis votorum solemnium praemittere debent prof es- 
sionem votorum simplicium declarandi essent vere Religiosi vel tan- 
tum participes privilegiorum? Nonnulli ex Emis Patribus primam 
partem propositions probandam esse existimabant, quia ageabtur 
de votis simplicibus perpetuis ex parte voventis, utpote quae tendunt 
ad emittenda deinde vota solemnia, in quibus perfectionem et com- 
plementum accipient, prout locum habet in Societate Jesu. Alii vero 
autumabant, communicationem tantum privilegiorum esse conceden- 
dam, cum non expediat privilegium singulare Societatis Jesu ad 
alios Ordines extendere, ne novus Status Religionis contra vigentem 
Ecclesiae disciplinam generaliter constituatur. In hac sententiarium 
disparitate SSmus D. N. Pius IX sequentem probavit articulum, qui 
'in declarationibus a memorata S. Congregatione datis sub n. VI 
Legitur: Professi dictorum votorum simplicium participes erunt 
omnium gratiarum et privilegiorum, quibus professi votorum solem- 
nium in memorato Ordine legitime utuntur, fruuntur et gaudent." 

Upon this article of Pius IX Petrus a Monsano, in his Collectio 
Indulgentiarum, theologice canonice ac historice digesta, p. 580, 
comments correctly: "Nee ipsi alumni, qui in Ordinibus religiosis 
professionem votorum simplicium per triennium praemittere debent, 
declarati sunt veri religiosi, licet participes facti sint omnium grati- 
arum, quibus professi votorum solemnium gaudent/' 

This opinion gains weight, and is confirmed, by the declarations 
of the S. Congr. Super Statu ReguL, and by the views of the authors 
of the law of regulars, from which it is evident that on the one hand 
(A) there are not conceded to the simpliciter professi certain rights 
and faculties of the solemniter professi, or that special rules apply 



SIMPLE VOWS AND RESERVED CASES 



*33 



for the same in regard to certain functions, as for instance in the 
Dispositio in temporalibus, etc.; and that, on the other hand, (B) 
they are exempted from certain duties or penalties of the solemniter 
professi: 

A. (a) Bona defuncti religiosi, qui tantum vota simplicia emisit, ad 
suos haeredes spectare, sive ab intestato, sive ex testamento venientes, 
declaravit s. Congr egatio Episc. et ReguL, die 6 Jun., 1836. 

(b) The solemniter professi vi temporalis vel perpetui indulti 
saecularizati are usually subjected to various clauses and conditions 
(Piatus M., torn. I, p. 175), whereas dimissi cum votis simplicibus ab 
omni vinculo et obligatione liberi sunt (Bouix I, 516). Quod in 
dubium est, si agatur de Us, qui in Ordinibus vere religiosis per 
triennium manere debent in votis simplicibus (decl. s. Congr., d. 12 
Jun., 1858). 

(c) Superiores Regulares hujusmodi professis concedere possunt 
litteras dimissoriales, sed ad primam Tonsuram "dumtaxat" et Ordi- 
nes minores servatis de jure servandis (decl. s. Congr., 12 Jun., 
1858). 

(d) Non possunt simpliciter professi titulo paupertatis ad Ordines 
sacros promoveri (S. Congr., 12 Jan., i860). 

(e) In actu receptionis ad votorum solemnium professionem sim- 
pliciter professi non habent suffragium (decl. s. Congr., die 7 Febr., 
1862). 

(f) Simpliciter professi excluduntur a ferendo suffragio pro 
admissione ad professionem votorum simplicium juxta declarationem 
s. Congr., de die 1 Sept., 1875. 

(g) Neque licite neque valide simpliciter professi eligi possunt 
tanquam Praelati vel Superiores in eodem Ordine (decl. die 16 Jan., 
1891). 

(h) Ad quaestionem, an voto simplici paupertatis ligati de suis 






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THE CASUIST—VOL. II 



bonis valide disponant absque licentia Superioris, respondet Piatus 
M.: sententia communior afhrmat; peccant quidem graviter contra 
votum ita agendo; nihilominus capaces sunt transferendi dominium; 
nullibi, enim hujusmodi incapacitatem statuit ecclesia. 

(Ita etiam apud eundem auctorem; Suar., Sanch., Lugo, Schmalz, 
Ferraris.) 

B. (a) Simpliciter professi tenentur choro interesse, licet non 
teneantur ad privatam divini officii recitationem (del. s. Congr. super 
statu Regul., 6 Aug., 1858). 

(b) Inter conditiones ad apostasiam proprie dictam requiritur ut 
recedens in religione proprie dicta a Sede Apostolica approbata vota 
substantialia emiserit. JJnde qui recedit durante triennio votorum 
simplicium, non est verus apostata, quia nondum vota substantialia 
emisit (apud Piatura M., p. 195, Suar., Sanch., Reiff.). Ergo nee 
Excommunicationem aliasque poenas incurrit. 

(c) Inter conditiones ad Excommunicationem latae sententiae 
nemini tamen reservatam ob habitus religiosi dimissionem incurren- 
dam etiam habetur: ut habitus dimissio a religioso professo fiat, quia 
canones citati de religioso loquuntur. Porro in sensu stricto hoc 
nomine veniunt tantum religiosi vere professi (Ita apud Piatum M., 
p. 302, Passerini (O. Pr.) Pellizarius, S.J., Rotario Barn). 

(d) Ad quaestionem, utrum fratres Laid Excommunicationem 
aliasque poenas incurrant, si mulieres in monasteria virorum intro- 
ducunt: respondet Piatus M., p. 360: afHrmandum est, si vota solem- 
nia jam emiserint, cum sint veri religiosi; ergo non incurrerent has 
poenas cum votis simplicibus. 

If, and because, the simpliciter professi must not be regarded as 
veri religiosi, and for this reason are not partakers of various rights, 
faculties and privileges of the solemniter professi; if further they 
are not bound to all the duties and obligations of the solemniter pro- 



SIMPLE VOWS AND RESERVED CASES 



2 3S 



fessi, not even incurring papal reservations, just because they are 
only simpliciter, and not solemniter professi, I think I am justified 
in drawing the conclusion : Simpliciter professi non incurrunt casus 
in Ordine reservatos; agitur enim de lege poenali et odiosa quae est 
strict e interpretanda, adeoque Us solis, qui indubie religiosi sunt, 
applicanda. 

P. Antonius, O. Fr. M. 



LVL ADMISSION TO HOLY ORDERS 

Placidus, spiritual director and confessor in a clerical seminary, 
became uneasy in mind at ordination time every year, as he does not 
know exactly whether or not he should admit certain doubtful can- 
didates to Holy Orders; all the more he is embarrassed as there 
prevails in the diocese a great lack of priests. Recent moralists, like 
Berardi, appear to favor leniency ; earlier ones, however, demand 
that doubtful candidates be rejected. The question is: What rule 
is to be followed in this regard ? 

Answer. — Doubtful may be considered in general all those can- 
didates who have not discarded serious sinful habits, but have merely 
promised amendment. Of such habits may be mentioned especially 

ebrietas and mollifies. 

The longer a candidate remains under the circumspect guidance 
of a spiritual director, the better judgment can the latter form of the 
penitent's temperament: the formation of this judgment is particu- 
larly easy after an alumnus has spent three or four years in the 
seminary. He, who in the first years of his sojourn in the sanctuary 
of the Lord, far from the distracting clamor of the world and close 
to the source of grace, shows no signs of earnest purpose of amend- 
ment, of him can lasting amendment neither be expected after ordi- 
nation ; for he who honestly and sincerely makes use of the means 
of grace at his disposal, will assuredly become master of his passions 
before ordination. But he who employs them only indifferently, 
can not without presumption expect miraculous conversion from the 
Holy Sacrifice and the Holy Office. Grace and good will are the 
chief factors in the process of perfection. Where honest good will 
is wanting, there exterior graces avail little and only periodically. 

236 



ADMISSION TO HOLY ORDERS 



237 



An opinion is more difficult if the candidate came to the seminary 
from a life in the world, and within the space of a year must finally 
declare himself for the priesthood. In this case the terms 'rarius, 
bonae frugis, probitas" are for the director the criterion. 

(a) Rarius. Relapse into sin must not only become rarer, but very 
rare indeed, for St. Paul writes to his disciple Timothy, II, 22: 
"Manus cito netnini imposueris, neque communicaveris peccatis ali- 
enist The Council of Trent, sess. 23, cap. 14, charges the bishops : 
"Sciant Episcopi debere ad hos ordines assumi dignos dumtaxat et 
quorum probata vita senectus sit/' and St. Thomas teaches that for 
the candidates for ordination non suiikit bonitas qualiscunque, sed 
requiritur excellens. For this reason P. Marc (p. 411) draws the 
conclusion :"Hinc prohibet apostolus (II Tim. Ill, 6) ordinari neo- 
phytos, id est, ut explicat idem Angelicus, qui non solumi aetate neo- 
phyti sunt, sed et qui neophyti sunt in perfectione." 

God, in His wise providence, gives as a rule moral virtue not 
without effort and struggle on the part of the recipient, and this* 
effort will be all the harder, and the struggle all the more violent, 
the more the opposite vice has taken posession of the sensual nature, 
and the deeper roots it has struck in the heart. 

Like a river that has overflowed its banks, and lays waste the fields 
and meadows, can not be turned back into its bed by an easy turn 
of the hand, neither can the stream of passion, especially when it is 
a question of occasio in esse, securely be dammed merely by a simple 
act of will, and generally even after a sincere return to God some 
relapses are not unlikely, until virtue gradually has been fortified. 
Naturally, inconstancy, neglect in co-operating with grace, and 
inexperience in employing the means of grace, are the causes of 
such relapses. 

(b) Bonae frugis. The candidate must show that he has labored at 






\ 



238 



THE CASUIST—VOL. II 



the amendment of his life with fruit and profit, and that thus, in his 
new state in life, he gives promise of being useful to himself and 
others. He, who is himself not in the state of grace, who discharges 
the sacred functions therefore sacrilegiously, certainly will never 
contribute to the welfare of the Church, nor be a blessing to the 
souls entrusted to him. The Church does not of course demand that 
her clergy must have been previously perfect, and for admission to 
the cloister, as well as to the seminary, the principle of St. Bernard 
applies : "Nos in tnonasteriis omnes recipimus spe meliorandi" but 
she demands to see in her prospective ministers visible progress in 
virtuous endeavor, and this all the more pronounced the nearer they 
approach the altar. Hence Benedict XIV, in his Bull Ubi primum, 
addresses the bishops thus : "Studiosa et magna adhibita diligentia 
investigandum a nobis est, an eorum, qui priorum Ordinum sus- 
ceperint ministeria, talis fuerit vivendi ratio et in sacris scientiis 
progressio, ut vere digni judicandi sint, quibus dicatur: ( Ascende 
superius' cum alioquin expediat in inferiori potius aliquos manere 
gradu, quam cum suo majori periculo et aiiorum scandalo ad alti- 

orem provehi" 

The Council of Trent expresses itself even more plainly (Sess. 23, 
cap. II) on individual ordinations, demanding from those in minor 
orders: "Clerici ita de gradu in gradum ascendant, ut in eis cum 
aetate vitae meritum et doctrina major accrescat: quod et bonorum^ 
morum exemplum et assiduum in ecclesia ministerium atque major 
erga presbyteros et superiores ordines reverentia, et crebrior quam 
antea corporis Christi communio maxime comprobabunt" ; of deacons 
and sub-deacons it expects (cap. 13) : "Subdiaconos et Diaconos or- 
dinandos esse, habentes bonum testimonium et in minoribus Ordini- 
bus jam probatos, qui sperant Deo auctore se continere posse/' and of 
priests (cap. 14) : "Qui pie et fideliter in ministeriis anteactis se 



r- 



ADMISSION TO HOLY ORDERS 



239 



gesserint et ad Presbyteratus ordinem assumuntur, bonum habeant 
testimonium . . . atque ita pietate ac castis moribus conspicui 
sint, ut praeclarum bonorum operum exemplar et vitae monita ab eis 
possint exspectari!' 

(c) Probitas. Mere outward integrity and freedom from con- 
spicuous exterior faults do not suffice ; a life of probity is demanded, 
probata vita, as the Council of Trent says, alluding to the words of 
St. Paul : " Diaconos similiter pudicos et hi autem probentur primum 
et sic ministrent nullum crimen habentes." Hence St. Alphonsus 
requires of candidates for the priesthood probitatem habitualem, and 
St. Bernard demands : "In clero autem viros probatos deligi oportet, 
non probandos" 

Although in regard to renunciation of temporal goods and sub- 
mission of the will lesser claims are made upon secular priests than 
upon regulars, yet in puncto puncti, being in constant intercourse 
with the world, and having fewer means of grace, they are exposed 
to greater danger and in this they must be fortiores. Hence St. 
Alphonsus, and after him Scavini, require of an ordinandus a per- 
fect abstemiousness of three months. Cardinal Goussey says : If a 
candidate has fallen once or twice, more from frailty than from de- 
sign, and is much affected by his fall, then according to our opinion 
six months' probation are enough ; generally, however, a year should 
be required, especially if the fall was of design. Other moralists, as 
Bertin, Bouvier, Leon, a Porto Maur., are still more exacting. 

It should not be inferred from these opinions that the probitas 
ordinandorum is to be determined according to mathematical forms, 
by days and months, for the human heart is not a machine. One who 
has been on probation for a long while may again relapse, and a 
recently converted Paulus may hold his ground. We must never 
forget that even a promising servant of God may fall if he do not 



1 



240 



THE CASUIST— VOL. II 



combine continual vigilance with prayer and work, and that for us all 
the words are applicable : qui stat videat ne cadat. For a forceful, 
energetic character there may suffice a considerably shorter proba- 
tion than for an indolent weakling, one who seeks the security and 
shelter of the sanctuary rather than the glory of God and the 
Church's welfare. 

The apparently severe opinions of saintly teachers and theologians 
merely indicate that, in the all-important matter of election to the 
priesthood, probability is not sufficient, and by no means should a 
mercenarius be given admission to the sanctuary just to remedy a 
lack of priests ; a doubtful candidate should be rejected rather than 
approved ; for there is no greater harm for the Church of God, no 
greater curse for the people, than unworthy, undutiful priests. Nor 
is there a more certain road to misery, in this and the other life, than 
the priestly state for those without vocation. 

P. Agnellus, O. M. Cap. 



LVIL ADMINISTRATION OF THE HOLY VIATICUM 
TO ONE UNCONSCIOUS FROM A 
PARALYTIC STROKE L^_ 

The curate Lucius is called to Caius, who, nearly eighty years of 
age, and never before seriously ill in his life, had now suffered a 
stroke of paralysis. Lucius found him fully conscious, heard his con- 
fession and prepared to leave, not considering the man's condition 
critical. Only at the urgent request of the anxious wife, and at 
the patient's own solicitation, decided Lucius to give Caius Extreme 
Unction. Thereupon the patient asks for the Holy Viaticum, say- 
ing he felt his end approaching. Lucius hastened away to get the 
Viaticum. Meanwhile the daughter prayed with her father short 
acts of preparation for Holy Communion. Just before the priest 
returned with the Holy Viaticum Caius lost consciousness. Thus 
Lucius found him and waited a while for consciousness to return. 
But in vain. He was sorry not to be able to give the Viaticum to 
the unconscious man. He bestowed absolutio in articulo mortis, 
and bore the Holy Sacrament back again to the Church. Caius died 
shortly after, without regaining consciousness, and of course with- 
out the Viaticum. The question is, did Lucius act correctly in not 
giving the Viaticum to the unconscious man ? Does unconsciousness 
of itself preclude the reception of the Holy Viaticum? To both 
questions the answer is briefly : No ! 

Now the argument. The actual reception of Holy Communion is 
necessary in general, necessitate praecepti divini et ecclesiastice. 
The divine Saviour expressly imposed actual reception, not merely 
upon the priests, but also upon the faithful. This is plainly evident 
from the Lord's words at the institution of the Holy Sacrament of 

241 



i 



242 



THE CASUIST— VOL. II 



the Altar: "Accipite et comedite . . . Hoc facite in meam 
commemorationem." The Apostle (I Cor. ii, 23-27) confirms this 
beyond any doubt, by concluding the account of the institution of 
the most Holy Eucharist with the words: €t Quotiescumque enim 
manducabitis panetn hunc et calicem bibetis; mortem Domini an- 
nunciabitis donee veniat." The Council of Trent (sess. 13, cap. 2) 
confirms the divine command of actual reception as follows : "Salva- 
tor noster, discessunts ex hoc mundo ad Patrem, sacramentum hoc 
instituit, in quo divitias divini sui erga homines amoris velut effudit, 
memoriam taciens mirabilium suorum; et in illius sumptione colere 
nos sui memoriam praecepit, suamque annuntiare mortem, donee ipse 
ad judicandum mundum veniat" 

St. Thomas Aquinas (3 qu., 80 a., II) refers, in further proof, 
also to the following words of the Lord (John 6, 54) : "Nisi man- 
ducaveritis carnem Filii hominis, et biberitis ejus sanguinem, non 

habebitis vitam in vobis." 

In the early centuries of Christianity the ardor of the faithful in 
the actual reception of Holy Communion was so great that the 
Church had no need of issuing a command in regard to it. This 
became necessary only when this ardor lessened. Since that time we 
have had many decrees of Popes and councils, by which the obliga- 
tion of receiving Holy Communion is emphasized. For brevity's 
sake we refer only to the fourth Lateran Council, under Pope Inno- 
cent III (can. 21), and to the Council of Trent (sess. 13, can. 9). 

The reception of Holy Communion is directed especially in danger 
of death. This duty follows from the very purpose for which Our 
Lord chiefly commanded the reception of Holy Communion. The 
Council of Trent, in reference to this, says: "Sumi autem voluit 
sacramentum hoc, tamquam spiritualem animarium cibum, quo alan- 
tur et confortentur viventes vita illius, qui dixit: Qui manducat me, 



ADMINISTRATION OF THE HOLY VIATICUM 243 



et ipse vivet propter me: et tamquam antidotum, quo liber emur a 
culpis quotidianis, et a peccatis mortalibus praeservemur. Pignus 
praeterea id esse voluit futurae nostrae gloriae, et perpetuae felici- 
tatis, adeoque symbolum unius illius corporis, cujus ipse caput ex* 
istit, cuique nos tamquam membra arctissima fidei, spei et charitatis 
connexione adstrictos esse voluit." 

When, however, are we more in need of this spiritual food for the 
soul, this antidote against the poison of sin, this pledge of future 
glory and eternal bliss, as also of the most intimate union with 
Christ, our Head, as the living members of His mysterious Body, as 
when in danger of death, in that important moment upon which the 
whole of our eternity depends and when Satan once again employs 
all his cunning and power to plunge the soul into eternal ruin. 

Hence St. Jerome (in Evang. St. Matt., c. 15) says with refer- 
ence to the dangerously sick : "Non vult eos Jesus dimittere jejunos, 
ne deficiant in via. Periclitatur ergo, qui sine coelesti Pane ad opta- 
tam mansionem pervenire festinat. Unde et Angelus loquitur ad 
Eliam: Surge et manduca, quia grandem viam ambulaturus es" 

Similarly the Council of Trent expresses itself (1. c. cap. 8): 
t( Panis ille supersubstantialis vere Udelibus christianis sit animae 
vita et perpetua sanitas mentis, cujus vigore confortati ex hujus 
miserae peregrinationis itinere ad coelestem patriam pervenire vale- 
ant, eundem Panem Angelorum quern mo do sub sacris velaminibus 
edunt, absque ullo velamine manducaturi" (Compare Cat. Rom., p. 
2, c. 4, nn. 54, 70). 

The ecclesiastical precept of the reception of the Holy Viaticum 
is expressed unmistakably also in the constant practise of Holy 
Church. It has always been her chief concern that none should 
depart this life without the Holy Viaticum. Innumerable instances 
from the Church's history bear witness to this constant concern of 



244 



THE CASUIST— VOL. II 






the Church. St. Dyonisius of Alexandria gives an account (Euseb. 
Hist. Eccl., i, 4, c. 44) of an aged man, named Serapion, who per- 
ished in the persecution. Before his death he sent for the priest so 
as to receive the Holy Viaticum. The priest himself was seriously sick 
and could not possibly journey the long distance. In order, however, 
not to let the sick man die without the Holy Viaticum, he entrusted 
it to the messenger. "Exiguam Eucharistiae partem puero tradidit, 
jubens, ut aqua intinctam seni in os instillaret . . • Puer buc- 
cellam intinxit et in os senis infudit. Qui ea paulatim absorpta con- 
tinuo animam exhalavit." 

St. Ambrose shortly before his death received the Holy Viaticum, 
as we are informed by Paulinus, his secretary. Furthermore many 
Popes and councils expressly ordained the administration of Holy 
Viaticum to those in grave illness. Thus the Popes Siricius, Inno- 
cent I, Sixtus III, Leo the Great, Gelasius I, Felix III, Gre- 
gory the Great, Gregory III. Of the councils we mention those of 
Nice, the fourth of Carthage, the third of Orleans, the seventh, 
eleventh and sixteenth of Toledo, the second of Aix La Chapelle. 
The Council of Trent directs : "Deferri ipsam sacram Eucharistiam 
ad infirmos, et in hunc usum diligenter in ecclesiis conservari, prae- 
terquam quod cum summa aequitate et rationc conjunctum est, turn 
multi: in conciliis praeceptum invenitur et vetustissimo catholicae 
Ecclesia more est observatum. Quare sancta haec synodus retinen- 
dum omnino salutarem hunc et necessarium mot em statuit" (Com- 
pare Cat. Rom., p. 2). 

St. Alphonsus Liguori teaches positively (Theol. Mor., 1. 6, 
n. 290 q.) : "Sumptio Eucharistiae fidelibus adultis est necessaria 
necessitate non medii sed praecepti divini obligantis . . • in 
articulo mortis per modum viatici . . . Quisque fidelis in 



ADMINISTRATION OF THE HOLY VIATICUM 



245 



periculo vitae, quod praevidet vel merito timet v. gr. in gravi morbo 
. . . tenetur sub mortali communicare" 

This holy father does not leave us in doubt either as to what must 
be understood by articulus mortis. He explains (H. Ap., tr. 15, nn. 
19, 46) : "Quoad viaticum dicimus hie, quod quilibet Udelis tenetur 
Mo muniri semper ac inhrmus in probabili mortis periculo est con- 
stitutes, prout est qui graviter decumbit cum mortalibus signis 
. Potest suscipi Eucharistia a non jejuno, cum communio 
datur per viaticum in periculo mortis. Dictum est in periculo, quia 
ad recipiendum viaticum non est necesse nee laudabile exspectare 
tempus, quando nulla amplius spes vitae subest, sed sufficit ut adsit 
periculum probabile mortis." 

If then the reception of the Holy Viaticum is ordered and of 
obligation in danger of death, then naturally priests are also bound, 
under such circumstances, to administer Holy Viaticum. 

But is there no exception from this rule? And is simple uncon- 
sciousness among the exceptions? Only those sick persons are ex- 
cepted who can not receive the Holy Viaticum with becoming rever- 
ence. The Rituale Romcmum warns : t( Diligenter curandum est, ne 
Us tribuatur viaticum, a quibus ob phrenesim, sive ob assiduam tussim 
aliumque similem morbum aliqua indecentia cum injuria tanti Sacra- 
menti timeri potest" 

St. Thomas Aquinas gives to unconsciousness special mention. 
He makes a distinction between the so-called feeble minded and 
those deprived of all use of reason. He teaches that the Holy 
Eucharist is not to be refused to the feeble minded. Of the others 
he distinguishes such who never had the use of reason, and such to 
whom the use of reason was not always lacking. If the latter, while 
in command of their reason, showed devotion to the Most Blessed 
Sacrament, then it must be administered to them in danger of death, 



246 



THE CASUIST— VOL. II 



if no irreverence is to be feared. "Aliqui dicuntur non habere usum 
dupliciter: uno modo quia habent debilem usum rationis, sicut dicitur 
non videns qui male videt; et quia tales possunt aliquam devotionem 
hujus sacramenti concipere, non est eis hoc sacramentum denegan- 
dum. Alio modo dicuntur aliqui non habere totaliter usum rationis. 
Aut igitur nunquam habuerunt usum rationis, sed sic a nativitate 
permanserunt ; et sic talibus non est hoc sacramentum exhibendum, 
quia in eis nullo modo praecessit hujus sacramenti devotio: aut non 
semper caruerunt usu rationis; et tunc, si prius, quando erant com- 
potes suae mentis, apparuit in eis devotio hujus sacramenti, debet 
eis in articulo mortis hoc sacramentum exhiberi, nisi forte timeatur 
periculum vomitus vel exspuitionis" Unde in Concilio Carthaginiensi 
IV (can. 76) legitur: Is qui in infirmitate poenitentiam petit, si casu 
dum ad eum sacerdos invitatus venit, oppressus infirmitate obmu- 
tuerit, vel in phrenesim conversus fuerit, dent testimonium qui eum 
audierunt et accipiat poenitentiam; et si continuo creditur moriturus, 
reconcilietur per manus impositionem et infundatur ori ejus Eucha- 

ristia." 

St. Alphonsus in this entirely agrees with St. Thomas. 

Our case must be judged on these principles. Caius, shortly before 
the priest's return with the blessed Sacrament, possessed the use of 
reason, and plainly showed his devotion to this Sacrament by 
urgently asking for the Holy Viaticum. In his case there was no 
danger of vomiting, etc., and no profanation of the Most Holy was 
to be feared, therefore. If Lucius did fear any such thing he should 
have simply made a trial with an unconsecrated Host, so as to re- 
move all doubt in this respect. Unconsciousness of itself was cer- 
tainly no reason for Lucius to leave the sick man without having 
satisfied his desire. A doubt as to the proper disposition for the 
reception of the Holy Viaticum could not at all exist in this case. 



ADMINISTRATION OF THE HOLY VIATICUM 



247 



The genuinely Christian life led by Caius, a devout Catholic, was an 
additional guarantee in this respect. It is all the more to be re- 
gretted that Caius' ardent desire for the Holy Viaticum was not 
satisfied. Lucius should certainly hereafter proceed according to the 
views of our loving Mother, the Church, who is so solicitous for her 
dying children. The dying will thank him for it in eternity. 

P. Jos. A Leon, O. M. Cap. 



CONDITIONAL BAPTISMS 



249 



LVin. CONDITIONAL BAPTISMS 

In a recent publication a priest gives his opinion upon the repe- 
tition sub conditione, of Baptisms administered, in cases of necessity, 
by lay persons, midwives particularly, and what the procedure should 
be in such cases. The theoretical principles are, briefly: the priest 
must inquire how the lay Baptism was administered when he will 
find one of three cases to be the fact : 

(a) The Baptism was without doubt administered validly, and 
then he must not repeat it, but merely supply the ceremonies ac- 
cording to the ritual ; or 

(b) The Baptism was beyond doubt in validly given, and then he 
certainly must baptize the child ; or he finds 

(c) Neither validity nor invalidity of the Baptism is certain, one 
is as doubtful as the other, and then he must re-baptize the child 
sub- conditione: Si non es baptisatus. 

But what about the practise? For this the priest quoted gives 
two rules: 

1. In any case it is not allowed to re-baptize, even sub-conditione, 
until after inquiry has been made about the validity of the Baptism 
given. 

2. It is not necessary to make a thorough inquiry, if the midwife, 
physician, or other person, is known to the priest, and if from previ- 
ous questioning he is sure of her or his correct administration of 
Baptism, a brief question will suffice then in order to shape his mode 
of action accordingly. 

Will this mode of procedure always and everywhere be correct ? 
Above all, the inquiry sub 1 required will be superfluous in every 
case where the person is not a Catholic. In reference to this Lehm- 

248 



kuhl writes (Theol. Mor., II, p. 17) : "Pro America igitur plane 
puto, numquam haberi suMcientem certitudinem baptismi rite collati, 
nisi forte in singulars casu habeas testes catholic os fide omnino 
dignos. . • . Into ita in dies magis crescit sive infidelitas, sive 
etiam Hpud bonae iidei acatholicos incuria, ut nunc idem dici debeat 
vix non ubique." 

Inquiries will be superfluous, furthermore, in the case of "madams" 
or other persons who are reliable neither religiously, morally nor per- 
sonally, and their claim to have administered Baptism correctly need 
not be heeded. Such persons are likely to knowingly deny mistakes, 
in order not to be embarrassed before priests and sponsors. But 
even in the case of other persons not very well instructed, one can 
not depend upon even the most careful inquiries with the certainty 
required for the first and most necessary of the Sacraments. In 
almost every instance they will claim to be quite sure of having 
administered Baptism correctly, as it will appear to them impossible 
to make a mistake in such a simple thing as Baptism. All those 
trifles, however, that are sufficient to render Baptism uncertain, and 
to make necessary its repetition, that need the vigilance even of the 
trained priest, those are often fatal to lay-Baptisms. They escape the 
notice of lay persons and even by minute examination can not always 
be ascertained. It is somewhat of a task to ascertain from the aver- 
age midwife (or physician, etc.) if she or he used natural water? If 
she made correct use of the correct formula ? What of the intention, 
of corruptions of the baptismal formula, of leaving out words ? Er- 
rors will easily occur in the hurried, or careless, administration of 
lay-Baptism, without attracting attention of the lay person admin- 
istering the Sacrament, and without possibility of detection after- 
ward. These "trifles" suffice, according to theologians, to allow Bap- 
tism to be repeated conditionally. Who, then, will find fault with 



*5° 



THE CASUIST— VOL. II 



CONDITIONAL BAPTISMS 



251 



the priest who, in the case of the average midwife, or other lay 
person, only insufficiently instructed, omits all examination because 
he can not depend upon the answers, and without further ceremony 
re-baptizes conditionally to make sure that each infant shall validly 
receive Baptism ? An exception is to be made, and Baptism need not 
be repeated, if correct lay-Baptism is attested by an eye and ear 
witness, whose knowledge and conscientiousness are a safe guaran- 
tee for his statement. But where is such testis omni exceptione 

major likely? 

If the midwife, physician, or other lay person, is God-fearing, 
conscientious, and well instructed about the details of the adminis- 
tration of Baptism, about intention, matter and form, and applica- 
tion, if it be known, furthermore, that even under the most difficult 
circumstances this person gives lay-Baptism correctly, with com- 
posure and presence of mind, then the priest, as is said sub 2 above, 
need not again and again put the same questions to this person, in 
every case of lay-Baptism administered by her, or him, only to 
receive the same answers. But even with such persons the diligens 
examen required by theologians has a purpose, saltern, prout ad- 
juncta ferant (Lehmkuhl, Theol. Mor., II, p. 16). 

One should particularly inquire whether it was a special case, 
whether there were extraordinary circumstances. If the priest then 
finds no special reason for conditional re-Baptism, he will omit it. 
But even with such well instructed, reliable persons, this should not 
become the rule. The omission of re-baptizing must rather be the 
rare exception. This is plainly prescribed by the Congreg. de 
Propag. F., dato September 8, 1869 (Lehmkuhl), that, namely, 
children baptized by lay catechists are not re-baptized quibusdam 
"casibus exceptis" ubi fieri potest, ut nullum prorsus probabile du- 
bium circa validitatem baptismi oriatur, although these lay catechists 



are examined at least once a year as to their reliability. In this mat- 
ter applies the principle that "the Baptism should rather be repeated 
than not spent at all" (Goepfert). 

Judged upon these principles those diocesan precepts that impose 
the obligation of invariable re-Baptism of children baptized by lay 
persons are fully justified. Circumstances, such as lack of instruc- 
tion, indifferentism, etc., may prevail so generally, that notwithstand- 
ing the most searching inquiries there will in individual cases be 
reason for doubt, and hence for a repetition of Baptism. Such dio- 
cesan practise does not contradict dogma. It will always except in- 
dividual cases in which the validity of lay-Baptism is proved beyond 
doubt. If, for instance, a priest has, in case of danger, provisionally 
baptized a newly born infant without the prescribed ceremonies, it 
would never occur to anyone, nor be required by any diocesan de- 
cree, that there must also be a conditional re-Baptism. The "priest 
baptizing," so Scherer says in his Manual of Canon Law, "is not 
obliged, according to present practise, to engage in any lengthy ex- 
amination about the validity of a lay-Baptism, he may rather 
presume its invalidity. The assertion that such indiscriminate 
re-baptizing of lay-baptized children contracts irregularity is not 

supported by the law." 

Fr. Neuhold. 



LIX. CONSECRATION OUTSIDE OF HOLY MASS 

A priest is required to take the Viaticum to a dying person. For 
want of a consecrated Host, he takes an unconsecrated one, pro- 
nounces over it the words of consecration, with the intention of 
consecrating the Host, and gives it to the dying person. Is such 
consecration, in case of necessity, outside of Holy Mass, valid ? 

Yes, it is valid. To this question St. Alphonsus replies as fol- 
lows: Negat Lugo, quia, ut ait, ratio sacramenti nequit dividi a 
ratione sacrificii ; alii veto communiter affirmant, quia 

in omni sacramento, semper ac minister formam profert super ma- 
teria cum debita intentione, perHcit sacramentum. Haec sententia 
est quidem valde probabilis, sed opposita non videtur improbabilis 
(Th. Mor., L. VI., n. 196, Dub. 3). 

Such procedure, however, is always grievously sinful. Lehm- 
kuhl, in his Theol. Mor., II, n. 131, teaches: Graviter peccat qui 
consecrat extra Missae celebrationem; and Dr. Muller, in his Moral 
Theology, states (L. Ill, par. 92, n. 3) : Nee in necessitate quan- 
tumvis gravi, e. g., ut moribundo praebeatur viaticum, licitum est 
alteram tantum materiam consecrare. 

Adolph. Schmuckenschlager. 



252 



] 
1 



LX. AN UNBAPTIZED MARRIAGE CANDIDATE IN 

THE CONFESSIONAL 

Livia, the religiously brought up daughter of a wealthy manufac- 
turer, is about to marry Titus, who for several years has been 
bookkeeper in her father's office. The wedding is to be celebrated 
in the spirit of the Church; Livia and Titus are to receive Holy 
Communion at the Nuptial Mass. Two hours before the ceremony 
they both come to confession. Titus, who for some time has regu- 
larly received the Sacraments at Easter time, begs the priest, in his 
confession, for advice and assistance, confessing that he is an 
adventurer, having secured his position with the aid of forged papers, 
and that he is a Hebrew. In deference to the views prevailing in 
the home of his employer, and particularly out of consideration for 
the daughter of the house, he has pretended piety, even going to the 
Sacraments; he avows he had not unwillingly entered the confes-^ 
sional, as he had been comforted there and had recognized in the 
priest, bound in secrecy through the seal of confession, a sympathiz- 
ing friend and a consoler for his greatly perturbed soul. He had 
even felt that, through his humble admission of errors, not only had 
his soul been comforted, but relieved from guilt through the absolv- 
ing words of the minister of God. Now he had resolved to make this 
awful revelation, safe from all betrayal, hoping for assistance, ad- 
vice, mercy! He, however, states his unalterable will: 1. That he 
will not desist under any circumstances from marrying Livia; 2. 
That although he is certainly not an irreligious man, he can have no 
faith in a personal God, in Christ, in dogmas. And now the priest 
shall say what is to be done. 

*53 



254 



THE CASUIST— VOL. II 



AN UN BAPTIZED MARRIAGE CANDIDATE 



*55 



I. May the priest impart this information to the bride or to her 
father ? To this question we must reply a positive No ! 

Evidently no seal of confession exists here ; Titus has never sought 
sacramental absolution. Yet perhaps a natural obligation to secrecy, 
a sort of official seal of secrecy, binds the priest. A revelation would 
also result in the most scandalous stories about revelations from the 
confessional, thereby bringing the Sacrament of Penance into ill re- 
pute, all the worse as Titus would not escape punishment by the law. 
Compared with this tfte great misfortune of the deceived bride and 
her family can not be taken into account. Every man has the natural 
right in the state of distress to seek counsel and consolation, and 
the Church imposes upon the one entrusted with this confidence the 

strictest silence. 

To be sure in such a case the strict obligation of secrecy can not 
be viewed as absolutely certain. Per se, ex natura secreti, it follows 
not. Propter scandalum evitandum, therefore per accidens it might 
follow. S. Alph., Theol. Mor., Lib. 4, Tract 6, n. 971 : Potest mani- 
festari secretum commissum, saltern sine peccato grain: . . . 
ex justa causa, nempe si servare secretum vergeret in damnum 
commune vel alterius innocentis, vel etiam ipsius committentis ; quia 
tunc ordo charitatis postulat, ut reveletur; unde etiamsi jurasses, 
tunc detegere posses. Ita communiter, etc. If it can be hoped that a 
scandal arising from publishing the secret, namely the opinion that 
the seal of confession had been violated, may be removed by ex- 
planation, and that the people would accept such explanation, then 
the confessor would have to act as due consideration for averting the 
damnum injustum from Livia would suggest. If the confessor can 
not entertain this hope then he will per accidens, propter scandalum 
horrendum, propter bonum commune, namely the conservation of 



confidence to the Holy Sacrament of Penance, be obliged to 
secrecy. 

Of course the obligation of secrecy for the priest would be much 
plainer, if Titus had revealed his secret, in the form of a confession, 
only after long years of wedded life with Livia, after they had been 
blessed with children, then the revelation in a certain sense would 
no longer serve as avertendum damnum, but place Livia in a posi- 
tion which would actually mean a damnum emergens and deliver 
her, besides, to most serious qualms of conscience. 

May the priest arrange for a sanatio matrimonii in radice? Even 
if this is possible from a dogmatic standpoint, the priest must not 
apply for it without Livia's knowledge ; for Livia's consent is by no 
means to be presupposed. If Titus should be found out and be 
brought to court, Livia would perhaps find consolation in the fact 
of not actually being the wife of the adventurer and in having ex- 
clusive right to the children; it might eventually be her only com- 
pensation if some honorable man would then take this unfortunate 
woman for his wife. 

Rudolf Hittmair, D.D. 



AN CONSECRATUM SIT CIBORIUM 



257 



LXL AN CONSECRATUM SIT CIBORIUM EX OBLIVIONE 

EXTRA CORPORALE